This year marks the thirtieth anniversary of the UN Convention on the Rights of the Child. Back in the late 1980s, the authors of the Convention could not have foreseen the impact of information and communication technologies (ICTs) on the everyday lives of children and young people who make up a third of internet users today (Livingstone, Carr and Byrne, 2016). As a children’s rights advocate, a question I am increasingly being asked is whether children have rights in the online world and how they can be enforced. The short answer is that it has been acknowledged that Convention rights are relevant and applicable in the digital environment (UN Committee on the Rights of the Child, 2014). The UN Committee on the Rights of the Child, which oversees the implementation of the Convention by states, is currently seeking submissions with regard to developing its own interpretation on the rights of children online, (UN Committee on the Rights of the Child, 2019) led by the internationally renowned expert in the field, Professor Sonia Livingstone.
Children’s activity online
A recent Irish survey found that almost 50 per cent of 6-18 year olds say that they are ‘always’ online. That varies from 10 per cent amongst 6-10 years olds to 94 per cent of 16-18 year olds (Hand, 2018). Access to ICTs provide children and young people with a range of opportunities and benefits such as supporting offline creativity and hobbies, such as using a YouTube video as a source of instruction to learn the guitar (OFCOM, 2016). Children and young people in the UK report that they choose content that helps them relax, or makes them think, and that they use social media to send messages of support, comments or posts to friends if they think they are having a hard time (OFCOM, 2016). However, the challenges and risks faced by children online vary widely and are well documented and increasingly issues that are coming to the fore include privacy and data protection, access to ICTs for children with disabilities or those who live in rural areas with weak broadband, online gambling and targeting of children for marketing of junk food.
This paper argues that a Government response to supporting children to lead positive online lives should be based on a rights framework, which would ensure that the full panoply of rights of all children in their online lives is respected, protected and fulfilled. Based on the UN Convention on the Rights of the Child, a rights-based mechanism at national level would ensure a commitment to the rule of law, access to redress as well as transparency, equality and clarity in terms of which body has the duty to fulfil a particular right. This can often be nebulous, because of the range of actors involved, and because industry is positioned as a non-State actor under international law. The issues faced by children online are best addressed using an international standard, as this would ensure a consistent approach and common understanding, which is necessary given the cross-jurisdictional nature of online platforms and services.
The Council of Europe international guidelines on the rights of children in the digital environment
The Council of Europe was the first to put forward a set of international guidelines to provide a roadmap to States on the rights of children in the digital environment, which was published in July 2018 (Committee of Ministers of the Council of Europe, 2018). The guidelines address the particular application of the rights of children to the online environment, not only the right to protection and safety, privacy and data protection but also the rights to freedom of expression, assembly, association and access to appropriate information in the online space, the right to play and the right to participation. They acknowledge that some rights are not absolute, and a delicate balance is required. For example, the guidelines provide that measures to protect children from abuse should not unduly restrict the exercise of other rights. Similarly, any interference with the child’s right to peaceful assembly through monitoring or surveillance should be prescribed by law, pursue a legitimate aim, be necessary in a democratic society and proportionate to the legitimate aim pursued.
The guidelines provide that governments should update legal frameworks to support the realisation of children’s rights online and establish a comprehensive strategic national approach to policy, such as a strategy or action plan. This should be supported by adequate human and financial resources and be based on current scientific knowledge, ongoing and sufficiently resourced research and good practices. Given Ireland’s position as the European hub of the world’s leading technology companies, our government is in a unique position to lead in the protection of the rights of children online. Just a week after the publication of the guidelines, the government published an Action Plan for Online Safety (Government of Ireland, 2018). It sets out 25 actions including the establishment of a National Advisory Council for Online Safety. It commits to new legislation on online criminal offences, consultation with children and young people to support the implementation of the plan and enhanced school curriculum development on online issues. The lifetime of the plan is very short at just 18 months and is due to expire at the end of 2019. While a government commitment to a longer term strategy would have been welcome, it has created the opportunity for a follow-up strategy which could more fully reflect the provisions of the Guidelines and perhaps link in with a new national children and young people’s policy framework – the current iteration will end in 2020.
Not only is the current generation of children the first to “grow up” online, their parents, guardians and teachers are the first to parent and support these young people in their online lives. The guidelines from the Council of Europe recognise the importance of education and digital literacy for children, and also for those who care for children in their everyday lives, and this is reflected nationally in the publication of the government’s Action Plan for Online Safety. An office of a Digital Safety Commissioner, which is mentioned as an action in the Plan, could be a single point of access for providing support to parents and teachers in this area as well as being a coordination point for all activities relating to the rights of children online. Crucially it could take the lead on the implementation of the key provisions of the guidelines here in Ireland.
The guidelines and industry
Both the UN and the Council of Europe recognise that industry, while not a signatory to international human rights treaties, has responsibilities to respect human rights (Committee of Ministers of the Council of Europe, 2018; UN Committee on the Rights of the Child, 2014). As the primary duty holder when it comes ensuring a child’s rights are respected, the guidelines set out how governments should ensure that industry plays its part, for example by supporting law enforcement in the identification of perpetrators of online child sexual abuse material, by facilitating the collection of evidence against such perpetrators, and by ensuring that their networks and services are not used for unlawful purposes that may harm in children. Industry has key role in providing access to remedies where the rights of a child have been violated. Governments should take steps to protect children from online abuse by implementing policies and measures that encourage business to establish their own remedial and grievance procedures. The guidelines also state that governments should encourage industry to provide information on making complaints and seeking redress that is age-appropriate, accessible to children, and available in the primary language of the child. It is also recommended that governments require industry to provide reporting mechanisms for material or activities online that may cause concern, and that reports are dealt with in a timely and efficient manner.
Governments are encouraged in the guidelines to provide industry with incentives to introduce safety by design, privacy by design and privacy by default as guiding principles for products and services’ features and functionalities addressed to or used by children. This could mean that for future development of products and services online, children as users would be considered at the outset of the design and planning stages by engineers and developers. This has the potential to have a positive/meaningful impact on the lives of children and young people. Legislating for these principles would ensure that they are a part of the planning stages of technology development.
The reliance in the Government’s Action Plan on a voluntary code of conduct and on self-regulation of industry has been criticised by child protection organisations, such as the ISPCC, (ISPCC, 2018) and does not reflect the principles set out in the guidelines which acknowledges the need for a combination of legal and voluntary measures as well as public and private. Self-regulation of industry could result in inconsistent standards being applied across industry. Government could go further and consider sanctions which could be effective where industry fails in its compliance with standards and where adequate remedies are not available to those impacted.
The guidelines acknowledge the fast-changing nature and evolution of the digital environment and for this reason in order to implement the guidelines, continued and regular, up-to-date and standardised research is needed, including data on the behaviours and activities of children and young people online and its impact on them. The National Advisory Council for Online Safety has established a Research Sub Group to develop baseline information including on ‘children, youth and risks/safety in use of the Internet’, which was scheduled to begin in the first quarter of 2019. It will be important that this research is not just a once-off but is updated on a regular basis, in order to develop a full picture and direction for the future of policy and government decision-making in this area.
The development of policies and supports for children in the online world is a new and daunting task for policy makers, industry and advocates of children’s rights alike. Listening to the voices of children and young people of all ages and engaging them in a meaningful way on issues as they arise will be an important part of the process. An international standardised approach using a children’s rights framework will go some way towards achieving this aim and Ireland is in a key position to champion this approach. The Council of Europe and the UN Committee on the Rights of the Child are opening the doors for governments navigating this new policy space, it is up to them to walk through.
 See for example, UNICEF (2012) Child Safety Online, Global Challenges and Strategies, Technical Report, United Nations Children’s Fund.