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French Senate Adopts Law Regulating the Exploitation of the Image of Children Online







Following adoption by the Senate last week, France is a step closer to adopting a law that will regulate the commercial exploitation of the image of children under the age of sixteen on online video-sharing platforms. 


The law creates new obligations for online platforms, including by extending their data protection obligations. The current version of the law has been watered down from the initial proposition in relation to video platforms.


Key provisions are the following:




-    (i) The law extends an existing legislative framework regarding the treatment of revenues generated by young entertainers to children under 16 who appear online, for profit.  Employers of these children (and parents are included in this category) will be required to obtain prior authorisation and approval from the relevant prefect before engaging a child to appear in online video content or producing such content.

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(ii) The authorities responsible for granting such authorisations are also empowered to appeal to the judicial authorities so that the latter may order the adoption of any measure necessary to prevent imminent damage or to put an end to manifestly illegal activity in circumstances where the administrative authority has determined that audio-visual content is being made available on a video-sharing platform in contravention of this law.


-      (iii) Video-sharing platforms will be required to adopt charters that have the following objectives:

·       informing users of the applicable legal rules regarding the distribution of the image of a child who is under 16 via their services, and of the risks, in particular psychological, associated with such distribution;

·       informing and educating, in collaboration with associations dedicated to the protection of children, minors under the age of 16 on the consequences of the dissemination of their image via online video-sharing platforms, of the impact on their private lives and psychological and legal risks, and regarding the means available to them to protect their rights and dignity;

·       taking all measures to prevent the processing of the personal data of minors for commercial purposes, including advertising and profiling;
·      encouraging the reporting by users of their services of audio-visual content that contains a child or children under the age of 16 and that negatively impacts the dignity, or the moral or physical integrity of a minor;
·       improving, in collaboration with associations dedicated to the protection of children, the detection of situations in which the production and distribution of such content would negatively impacts the dignity, or the moral or physical integrity of a minor who is featured in the video content; and

·       facilitating the exercise, by all minors (under the age of 18 in France) of the right to erasure (the so-called ‘right to be forgotten’) enshrined at Article 17 of the General Data Protection Regulation and Article 51 of the French data protection law (loi n° 78-17 du 6 janvier 1978 relative à l’informatique, aux fichiers et aux libertés.



-     (iv) Parental or legal guardian consent will not be required for minors to exercise their the right to be forgotten.

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      (v) The French audio-visual regulator (the Conseil supérieur de l’audiovisuel, or “CSA”)) will promote the adoption of the charters by the online video-sharing platforms and will publish a periodic review regarding the application and effectiveness of the charters. The regulator will be able to collect all information necessary to produce its report.


Comment:


The first draft of the law imposed much stricter obligations on video-sharing platforms to identify and remove content posted in breach of the law, backed by stiff fines.  According to the report prepared by the Culture, Education and Communications Commission the original drafting was juridically fragile and thus adoption in its then current form would not be effective. The provisions regarding online platforms were thus re-written and substantially watered down.


Nonetheless, the content of the obligations imposed on platforms may still give rise to some uncertainty in application. For instance:


·      The concept of a “platform service for the sharing of videos” may be potentially very broad, capturing platforms that allow the sharing of videos, even if this is not a primary purpose of the platform, since it does not adopt the same concept of “online content-sharing service provider”, from the new EU Copyright Directive nor with the definition of “online platform operators” in the French Consumer Code;

·       What actions will be required to “facilitate the implementation” of the right of minors to have their personal data erased, and the scope of this right, are unclear although the preparatory texts indicate that the purpose is to extend this right. The CNIL has not provided an opinion on the law.

·       The nature of the cooperation required with childrens’ rights associations;

·       The nature of the role of the CSA to promote the adoption of the charters, which is meant to follow the example of the approach adopted by the law against fake news, but which remains a “soft law” approach. Interestingly, the Commission’s report states that this is the only alternative available “in a world where direct regulation of the Internet is legally impossible, without even addressing the possible infringement to the right of freedom of expression.”


The draft law still has to be approved be the two chambers of the French Parliament (Senate and National Assembly – Assemblée Nationale). It is therefore now back before the French Assemblée Nationale for approval, and will then have to be adopted by the Senate at second reading.


We will update the blog with new developments.


For any questions in the meantime, please email tech@bredinprat.com


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