Child Performers in the Entertainment Industry: An Analysis from the Employment Regulations Perspective

Abstract

Children as performers have been exploited for their likability, their innocence and their ability to generate income. Child stars who enter the entertainment industry at a young age are often robbed off their normal childhood and being transformed into money-making machines for their parents and managers and wooed enthusiastically by fans as celebrities throughout history. From the employment law perspectives, child performers are child labours requiring particular care and protection as many aspects of the workplace or their work activities represent a potential level of risk which are higher for children than adults’ performers. International Labour Convention and the United Nations Convention on the Rights of the Child (UNCRC) provide guidelines as to appropriate measure to protect children in workplace. Developed countries which are hubs for entertainment such as Canada, USA and UK have specific rules imposed for the rights of the children in the entertainment industry. International Journal of Academic Research in Business and Social Sciences Vol. 8 , No. 12, Dec, 2018, E-ISSN: 22 22 -6990 © 2018 HRMARS 1559 Objective: This article looks into whether Malaysia has any legal framework to regulate the employment of children in the entertainment industry. This article adopts doctrinal legal research which is based on precedent and statutory analysis. Introduction Children have been exploited as performers and wooed energetically by consumers throughout history. Managers and parents of child performers are often in conflict with legislators who attempted to regulate and control such exploitations. Legislators reasoned that their regulating efforts are based on preconceived ideas about the nature of children and their enjoyment of their childhood in their own cultural contexts. Scholarly investigations have been made on the issue of children performers focusing either from the perspectives of employment regulation and their participation in the entertainment industry with examples drawn from historical and contemporary contexts. Literature on issues surrounding child performers in the entertainment industry are global, from British and North American perspectives; from contributors in Australasia, Italy, India, Indonesia, Taiwan, and mainland China spanning from the eighteenth century to the interwar years and contemporary twenty-first century practices (Arrighi & Emeljanow, 2014). Among well-known child performers from the American and UK entertainment industry includes Shirley Temple, Jackie Coogan, Elizabeth Taylor, Britney Spears, Drew Barrymore, Michael Jackson, Macaulay Culkin, Emma Watson and Daniel Radcliffe. A child, according to the definition from the International Labour Organisation (hereinafter referred as ILO), is a person under 14 years of age, and a young person is one who is under 16 years of age. ILO facts sheet reveals that in many situations’ children are most likely to be employed in light work done within their own family as for example in public entertainment, apprenticeships; and works sponsored by the government. According to ILO Minimum Age Convention (C138) of 1973, child labour refers to any work performed by children under the age of 12, non-light work done by children aged 12 to 14, and hazardous work done by children aged 15 to 17. Light work is described under this Convention as any work that does not harm a child s health and development, and does not interfere with his or her attendance at school. This convention has been ratified by 135 countries. Child performers include among others young performers, singers, actors, dancers and athletes. These children are exceptions to the ILO 1973 Convention concerning Minimum Age for Admission to Employment, and so may be paid for their work, as long as they have permits that “limit the number of hours during which and prescribe the conditions in which employment or work is allowed” (ILO, C138 Convention Concerning Minimum Age for Admission to Employment). Currently, child performers are protected by various laws, for example laws which dictate how many hours the child may work and how much education they must receive and both of which varies by country. Countries, such as USA and Canada, has even regulated on the payment of child performers under its ‘Coogan Law’, to protect a child’s earning and ensuring that child performers earning are reserved for their own benefit (Krieg, 2004). Yet some believe these laws do not provide adequate protection whereas child performers represent a group of labour which is on the rise. Some scholars however, argue that child performers ought not to be provided with such an exception under ILO and that it should be International Journal of Academic Research in Business and Social Sciences Vol. 8 , No. 12, Dec, 2018, E-ISSN: 22 22 -6990 © 2018 HRMARS 1560 ensured that children under the minimum age not to be admitted into the employment world or to partake in paid work of any kind. International and Regional Standards Relating to Protection of Children and Child Labour and Their Relevance to Child Performers Protection of children from any kind of harm is foremost in the agenda of most countries. In terms of children as workforce, international as well as national instruments have been established to regulate it, since the start of the twentieth century. These international and national instruments focuses on the rights and benefits of children, as employee; the types of work which they are allowed to undertake and the accompanying precautions and regulations to be observed by the employers of these child employee. The following section discusses two of the important international instruments relating to children as a member of the workforce, namely the United Nations Declarations on the Rights of the Child, 1959 and the ILO Minimum Age Convention 1973, (No. 138). These instruments have been ratified by many nations, including Malaysia albeit with some reservations; and provided guidelines for national legislation. Nonetheless, the applicability or focus of these instruments on regulating welfare of child performers as a member of the workforce is still rather distant. The United Nations Declarations on the Rights of the Child, 1959 This Declaration, also known as the Geneva Declaration of Childs’ Right is among the earliest international instrument on human rights. It builds on an earlier UN Recommendation of 1924, and its elements of which are further enunciated in a number of other UN instruments, importantly in the Convention on the Right of the Child 1989 (CRC). The instrument delineates a number of basic entitlements for children. The following excerpts emphasis on the need of children to be protected and to be educated. It also stressed on parents’ responsibility for their children and to ensure that the best interest of the child is paramount consideration on all matters. It even lays down the basic guidelines for children should they be involved in workplace. iPrinciple 2 of the Geneva Declaration states: The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration. iiPrinciple 7 states: The child is entitled to receive education, which shall be free and compulsory, at least in the elementary stages. .... The best interests of the child shall be the guiding principle of those responsible for his education and guidance; that responsibility lies in the first place with his parents. iiiPrinciple 9 declares: The child shall not be admitted to employment before an appropriate minimum age; he shall in no case be caused or permitted to engage in any occupation or employment which would prejudice his health or education, or interfere with his physical, mental or moral development. International Journal of Academic Research in Business and Social Sciences Vol. 8 , No. 12, Dec, 2018, E-ISSN: 22 22 -6990 © 2018 HRMARS 1561 The spirit and intendment under the Geneva Declaration of 1959 has been expounded in the United Nations Convention on the Right of the Child 1989 (CRC). CRC is the first legally binding international instrument to incorporate the full range of human rights for children from the civil, cultural, economic, political and social perspectives (www.unicef.org). On child labour, Article 32 of the CRC recognises that children do help out in their family business or workplace, as long as it would be safe and appropriate for their age. It requires government to ensure that national laws would be in place to regulate children’s working conditions, emphasising on the protection of children from harmful and dangerous types of work which might be harmful and hazardous to the child’s well-being, physically or development wise. Children s work should not jeopardize any of their other rights, including the right to education, or the right to relaxation and play (www.ohchr.org) The notions of special safeguards and care for children with appropriate legal protection are important and unarguable general principles; however, in respect of children working in the adultoriented environment of entertainment production, these safeguards are not universally in force. Sand stressed on the importance of education as a basic requirement and a fundamental in establishing conditions of work for children, but in practise it might not always be a priority for children who are working and their employers (Sand, 2003). It is interesting to note to what extent these principles have been practised in the workplace of child performers. ILO Minimum Age Convention, 1973 (No. 138) The underlying philosophy of this extremely important and influential tripartite Convention, now ratified by 117 countries (ILO,