Kidfluencer

Kidfluencer

January 30, 2025

A ‘kidfluencer’ is a person under the age of 18 who has a presence on social media platforms and creates content to generate views and engagement, often sponsored. In other words, a minor influencer. Kidfluencers work in a similar way to adult influencers; they share their hobbies and personal activities with their audience and at the same time market products that fit their brand through paid partnerships. Many social media platforms have a minimum age requirement. This requirement means that many kidfluencer pages are run jointly with the parents/guardians of children who have not yet reached the required age. When working with underage influencers, particularly with regard to an influencer contract with them, there are legal peculiarities that need to be taken into account:

Use of underage influencers

In a digitalised world, contact with social media and content is unavoidable from an early age. It is therefore obvious that kidfluencers, like any other influencer, can achieve a large number of followers and an enormous reach on the internet. Accordingly, it can be lucrative and sensible for companies to use influencers in this area as well. However, it should be noted that special rules must be observed when involving minors, which primarily serve to protect minors.

The General Data Protection Regulation (GDPR) stipulates that the processing of personal data is only lawful with the consent of the data subject (Art. 6 para. 1a). However, such consent can only be given from the age of 16. For children and young people who have not yet reached the age of 16, parents or legal guardians must give their consent and agree to the processing of the child's personal data. The introduction of the GDPR also indirectly affected the rules of social networks such as Instagram, Tiktok, YouTube and Twitch, some of which have adjusted their terms and conditions with regard to the minimum user age or have made a declaration of consent from a parent or guardian a requirement, e.g. for personalised advertising. However, when registering on the platforms, age is usually only requested and not further verified.

Conclusion of a contract with a minor influencer

The same applies to kidfluencers as to all other children who conclude contracts: According to §§ 104 para. 1 no. 1 and 106 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), minors are legally incapable before the age of seven and have limited legal capacity after the age of seven. A minor is a person who has not yet reached the age of 18, § 2 BGB. A declaration of intent made by a legally incompetent person is null and void in accordance with § 105 para. 1 BGB. In his place, his legal representative must act.

If a minor with limited legal capacity makes a declaration of intent, its validity depends on the consent of the minor's legal representatives, unless it is only legally advantageous, cf. sections 107, 108 BGB.

In determining whether or not there is a legal advantage for the minor, it is not important whether the transaction makes economic sense for the minor, for example, whether he is getting a bargain. Rather, it depends on whether the minor's rights are restricted, whether he loses them completely or whether he is personally obligated.

When an influencer contract is concluded with a minor, it can be assumed that the contract obliges them to perform certain activities. The contract must therefore be classified as legally disadvantageous within the meaning of §§ 107, 108 BGB. It is irrelevant that the minor advertiser consciously entered into the collaboration and probably does not perceive the earning opportunity as disadvantageous themselves. The only thing that matters is whether the minor is obliged to perform certain acts under the contract. Due to the legal disadvantage, it is therefore necessary under Section 107 of the German Civil Code to obtain the consent of the legal guardian when concluding an influencer contract, i.e. to involve them before concluding the contract and to have them give their consent. If the contract is concluded without consent, the contract is deemed to be provisionally ineffective until the legal guardian has given their approval.

In principle, consent should be given in the form of individual consent for each individual activity of the underage influencer, according to which it is necessary to obtain the corresponding consent in advance when the specific assignment is concluded. It is true that the legal guardian can also declare their consent to the minor. However, since the lack of consent can render the specific transaction invalid, a declaration to the business partner is recommended for security reasons. While consent can be granted for a certain number of transactions instead of individual consent, it must not constitute general consent, which would not be compatible with the protective purpose of the standard. Such a general consent would be given, for example, if consent were given for all future business transactions with a particular agency.

Special case: business with the permission of the family court

Both Section 112 and Section 113 of the German Civil Code provide for the possibility of a kind of partial legal capacity for minors, so that minors can act independently on the basis of special consent.

According to § 112, the legal guardian can authorise the person of limited legal capacity to independently conduct a business transaction. In addition to the authorisation of the legal guardian, the approval of the family court is also required. Consent according to § 112 is probably the most practical option for the contractual partner who wants to engage a minor influencer, in order to work with them. This is because all transactions related to the minor's independent business activities are permitted. This makes it easier for the contractual partner to calculate for the future and to work with the minor, as the minor does not have to rely on repeated consent from their legal representatives. However, there is uncertainty as to whether the activity of an influencer constitutes a commercial activity associated with the business. This requires a permanent activity, whereby a full-time activity is not important. Rather, the influencer must generate regular income. Especially in the case of less successful or well-known influencers, it may be more difficult to determine the point at which the publication of posts on their own profile no longer serves as a pastime but rather as a means of generating income. If the legal guardian and the family court allow the minor to work as an influencer in accordance with Section 112 of the German Civil Code (BGB), then a contract for cooperation with advertising agencies should specifically describe this close factual connection between the transactions, according to which all future cooperation should fall under the authorisation.

A similar approach is taken by Section 113 of the BGB, according to which the legal guardian can authorise the influencer to enter into an employment or service relationship. Should the influencer enter into such a relationship, the legal guardians only have to give their consent to the specific employment once, and the minor then has unlimited legal capacity with regard to the conclusion and termination of such a relationship and the fulfilment of the resulting obligations. However, this only applies if the contractual relationship is structured in a customary manner and does not contain any extraordinary agreements that place a burden on the minor.

From the moment the influencer comes of age, the consent of the legal guardian is no longer required. However, to be on the safe side, a new contract should be concluded or appropriate changes made after the influencer comes of age.

Child labour?! – The relevance of the age of minors

In addition to the legal capacity of minors, child labour regulations must be taken into account with regard to underage influencers. Minors under the age of 15 are not actually allowed to work under the Youth Protection Act and the Youth Employment Protection Act, because according to § 2 of the Youth Employment Protection Act, everyone under the age of 15 is a child and between the ages of 15 and 18 is a young person.

Section 6 of the JArbSchG regulates exceptions to this, according to which a supervisory authority may, upon application, authorise children from three to six years of age to work for up to two hours a day and children over six years of age to work for four hours a day to participate in sound, film and photo shoots, which is likely to include work as an influencer. It is important to note that not only does the approval of the supervisory authority need to be obtained, but according to § 6 para. 2 JArbSChG, the legal guardians must also have given their written consent, a medical certificate must be provided stating that there are no health concerns regarding the minor's taking up employment, and it must also be ensured that the minor's school performance is not affected. In addition, the supervisory authority must be able to determine freely how long and on which days the child may be employed. Compliance with the Youth Protection Act is monitored by the relevant supervisory authorities in accordance with § 27 JArbSChG.

Another exception is provided for in § 5 para. 2 JArbSchG for children over 13 years of age, who may work with the consent of their legal guardians, provided that the work is light and does not impair the safety, health or development of the children (e.g. newspaper delivery, tutoring or babysitting). However, there are doubts as to whether working as a child influencer can be categorised as comparably easy work. The child would also have to be active online at home and it is not really possible to clearly separate leisure time and working hours when using online media. In addition, there is a risk that the child's personal development could be hindered if the child constantly has the impression that they are being watched.

For young people aged 15 and over, a working week of 40 hours is permitted. However, the daily working time must not exceed 8 hours and there must be no working hours at the weekend (Section 8 of the JArbSchG).

Since the Youth Employment Protection Act applies in particular to employment relationships (performance of non-independent work within the framework of a legal relationship under private law), it does not apply in principle if the underage influencer does not enter into an employment relationship with, for example, an advertising agency. However, according to Section 1 (1) no. 3 of the Youth Employment Protection Act, certain services that are similar to the work performed by an employee, i.e. activities that are carried out in the interest of a third party, are also covered by the youth employment protection. This is indicated by the regularity, greater scope and longer duration of the service, as well as the conclusion of a remuneration agreement. It can become problematic when young people provide such employee-like services for their parents or agencies. The purely self-employed activity of a child or young person outside of these criteria does not fall under the JArbSchG. This may be the case if the influencer is only hired for individual advertising campaigns.

If the intention is to enter into an employment relationship, or if such a relationship actually exists, it is advisable to keep precise records of working hours, especially for children under the age of 15, in order to be able to prove that the legally prescribed maximum working hours are not exceeded.

Foreseeable legal regulation

Since it can be assumed that the relevant aspects of the protection of minors are often circumvented when it comes to self-employed child influencers, this gap in the protection of ‘child labour in the digital sector’ will probably be closed by legislators in the future.

In France, for example, a law was already passed in 2021 that explicitly classifies the activity of ‘kidfluencers’ as work and, among other things, stipulates that permission must be obtained before the activity begins and that parts of the income must be invested in such a way that the influencer has access to this income when they reach the age of majority.