How do children get selected to appear in commercial adverts, and what laws are in place to protect their rights, safety and the benefits they receive from participating?
In the modern marketplace, commercial interests and profits are powerful incentives that businesses find difficult to resist. Yet, the wellbeing of children demands that adults—especially guardians, parents, caregivers, and programmers, whether acting under state or non‑state authority—reject scenarios where children are exploited, abused, misused, or tainted for profit.
This imperative finds its foundation in the Constitution of Kenya, 2010. Article 53 (1) declares that every child has the right to protection from abuse, neglect, and harmful practices, while Article 53(2) enshrines the principle that the “best interests of the child” must guide all decisions concerning them. This constitutional safeguard means that whenever a child is engaged in advertising, their welfare must outweigh commercial interests. Complementing this, Section 34 of the Data Protection Act and Section 8 of the Children Act, 2022 cement these protections in practical, people‑centred ways, ensuring that children’s rights are not abstract ideals but enforceable standards.
The sight of children in public advertisements—whether on billboards, television, or digital platforms—naturally raises concerns about their safeguards. Four critical questions emerge. First, how safe are children when employed to participate in advertisements? This touches on the broader issue of child labour and the thresholds of lawful employment in Kenya.
Second, how are children protected in terms of decision‑making and privacy, given their limited capacity to consent? Third, how is their dignity preserved, and how are they guaranteed access to the rewards that accrue from their participation? Fourth, what level of data protection standards is applied when children’s images and personal information are used in such contexts?
While advertising may showcase youthful charm to promote products, the law insists that children’s dignity, welfare, and rights remain paramount. The Children Act, 2022 builds on constitutional promises by requiring that children’s participation in public activities—including advertising—be conducted with parental consent and under conditions that safeguard their development. The Act prohibits exploitation and insists that any benefits arising from such participation must accrue directly to the child. In practice, this means that payments or rewards are often managed through parents or guardians, but legally they must serve the child’s welfare.
Kenyan courts have reinforced these protections. In NWR & another v Green Sports Africa Ltd & 4 others [2017], the High Court addressed a case where minors’ images were used on billboards without parental consent or compensation. The court held that a person’s image is a core attribute of personality, and children have the right to control its use. Importantly, the judgment emphasised that parental consent is mandatory and that exploitation without benefit violates constitutional rights. This case remains a landmark in affirming that children’s images cannot be commercialised without safeguards.
Beyond consent and compensation, the law also protects children’s privacy and dignity. Their images cannot be used in ways that demean them or expose them to harmful stereotypes. Advertising standards in Kenya, guided by statutory law and regulatory oversight, require that children not be portrayed in exploitative or unsafe contexts.
The protection of benefits is equally critical. Rewards—whether financial or in kind—must be directed toward the child’s welfare. Courts and child‑protection agencies can intervene where misuse is suspected, ensuring that children are not reduced to mere instruments of profit. Oversight by the Children’s Court provides a forum for redress, while the High Court under Article 22 of the Constitution allows public interest litigation to defend children’s rights.
Children may participate in advertising, but their involvement is not a matter of corporate discretion. It is a regulated activity, grounded in constitutional and statutory protections, where need be canvassed by the courts. Their dignity, privacy, and welfare must be safeguarded; parental consent is non‑negotiable, and benefits must serve the child’s best interests.
Thus, while advertisements may capture the innocence and appeal of childhood, the law ensures that behind every image lies a framework of protection. Kenya’s jurisprudence reminds us that children are not commodities; they are rights‑holders whose participation in public life must always be dignified, consensual, and beneficial to them.
It is also important to note that benefits accruing to children must be made available without fail. International jurisprudence reinforces this assertion. A notable example is the Coogan Law Case in the United States, where child star Jackie Coogan sued his mother and stepfather for spending his $4 million fortune. The outcome led to the enactment of California’s Coogan Act, which legally mandates that 15% of a child’s entertainment earnings be placed in a blocked trust fund until they reach majority age. This precedent underscores the universal principle that children’s earnings must be preserved for their benefit, not consumed by others.
Kenya’s legal framework, coupled with comparative international experience, demonstrates that protecting children in advertising is not merely a legal requirement but a moral obligation. It is a reminder that while commerce thrives on creativity and persuasion, the rights of children must never be subordinated to profit.
