Walking a tightrope on an ethernet cable
The CRC Committee’s 25th General Comment Children’s Rights in relation to the digital environment
The year 1989 was filled to the brim with historic events. The Berlin Wall came down, Salman Rushdie published his ‘Satanic Verses’ and Nintendo came out with its first Gameboy. Outside the political and cultural sphere, two major events took place which considerably shaped the world as we know it today: the adoption of the UN Convention on the Rights of the Child (hereafter: CRC) and, shortly after, the advent of the Internet. While these two events seemed fairly unrelated at that time, they have interacted and interlinked more and more in the past 22 years. While children’s rights during the drafting of the CRC in the 1980s and 1990s were solely conceptualised in the offline space, internet and technology considerably shape(d) the way children’s rights are exercised and implemented in today’s world. COVID-19 has given this development a major push in the last year, with education, social interactions and access to services moving online, exacerbating the digital divide in many parts of the world.
Conceptualising children’s rights in relation to the digital environment
With the launch of the CRC Committee’s General Comment No 25 on 24 March 2021, international children’s rights are now comprehensively, holistically and, even more important, carefully conceptualised in the digital environment. The Committee has undertaken a mammoth task: developing a rights-based, rights-balancing and rights-promoting interpretation of the 40+ CRC articles in only 20 pages in the context of the digital environment. Starting with the CRC’s core principles – non-discrimination, best interests of the child, right to life, survival and development and respect for the views of the child – the Committee elaborates ‘how States parties should implement the Convention in relation to the digital environment and provides guidance on relevant legislative, policy and other measures to ensure full compliance with their obligations under the Convention and the Optional Protocols thereto in the light of the opportunities, risks and challenges in promoting, respecting, protecting and fulfilling all children’s rights in the digital environment’ (CRC/C/GC/25, para. 7). The questions to be answered by the Committee were often thorny, extremely controversial and politically charged, as the General Comment touches on complex issues such as end-to-end encryption, ‘sharenting’, targeted commercial advertising, and online child sexual abuse and exploitation. In order to find answers to these questions, the General Comment manages to calmly and consistently remind the reader that the same principles which apply to children’s rights in the offline space, such as proportionality of responses, the best interests of the child, and the principle of evolving capacities apply equally in the online space. This may sound like a simple and obvious approach, yet many countries around the world tend to lapse into panic when it comes to managing online risks for children, resulting in disproportional responses which are mostly nurtured by narratives of perceived threats to safety and security.
Moving away from the protection angle as dominant narrative
As a consequence of this panic, children’s rights in relation to the digital environment were often discussed from a purely protection and content risk angle. This has been fuelled by the horrific developments around online child sexual abuse and exploitation, which in many countries triggered the near equation of children’s rights online with child online safety. This protection-driven narrative neglected the complexity of the subject matter and failed to pay attention to the broader children’s rights spectrum also heavily influenced by the digital environment, such as civil and political rights, family and community life and the right to privacy. It is against this background that the General Comment ably counteracts this narrative, exemplifying that children’s rights across the board require interpretation in light of the digital environment. Whoever misses a deep dive into the multiple child online safety questions may be advised to read the CRC Committee’s 2019 Guidelines regarding the interpretation of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, which have to be read in conjunction with this General Comment. However, the General Comment misses the opportunity to address a shortcoming of the above Guidelines in the area of self-generated sexualised material. The CRC Committee does not acknowledge that the production and dissemination of self-generated sexualised material is for many adolescents a manifestation and expression of their most intimate thoughts and emotions, and should hence be protected by rights under the CRC. Basing the call for decriminalisation on a clear right to expression and privacy argument would have been helpful to assist States in finding an appropriate balance with the right to protection.
Carefully balancing conflicting children’s rights
However, the missed opportunity for establishing a balanced narrative for conflicting children’s rights is luckily the exception in the General Comment. Across the board, there is constant emphasis on how the different rights in the CRC can conflict in the digital environment, and that such conflicts should be resolved by aiming to uphold the highest levels of realisation for both. As an example, in the context of content control and moderation, the Committee recognises that such restrictions might be the only possible solution to prevent the flow of harmful materials to children. However, the Committee stresses in the same vein that such content control and moderation need to be balanced against other children’s rights such as the right to freedom of expression and right to privacy. In another paragraph, the Committee stresses the great opportunities digital identification and birth registration services offer for the realisation of children’s rights to health, education and welfare. Considering the sensitivity of the vital statistics stored in digitalised birth registration systems, emphasis is put on the need for robust privacy and data protection frameworks. Lastly, the Committee takes a clear stance against a protection-focused response to the end-to-end encryption debate. Contextualising this issue in a call for privacy-by-design products and services, the Committee states that in case end-to-end encryption is considered an appropriate measure, alternative measures for detecting child sexual abuse material should be considered. However, this should only be permissible if strictly adhering to the principles of legality, necessity and proportionality. This sends out a clear message to governments and the business sector that children’s right to privacy is not just a secondary right to children’s right to protection.
Emphasising the role of the business sector
The General Comment places a heavy emphasis on children’s digital rights and the business sector and spells out the shared responsibilities between Government and private sector to protect and promote children’s rights online. Whether indirectly or directly, businesses impact on children’s rights in the digital space either through the provision of services or the offering of products relating to the digital environment. The Committee places responsibility on Governments to ensure - through legislation, regulation and policies - that businesses uphold their obligations to prevent any children’s rights violations, both in relation to protection and privacy rights, and provide legal remedies for aggrieved children and their parents and caregivers. At the same time, it places the obligation on businesses to conduct child rights’ due diligence and to develop and implement self-regulatory frameworks and codes of conduct which prevent and respond to risks turning into harm. Further, the Committee takes a clear stance in the area of commercial advertising and marketing and asks member
States to prohibit by law the profiling or targeting of children for commercial purposes on the basis of children’s data sets. Similarly, businesses should be prohibited from using children’s data to promote products, applications and services in the context of neuromarketing, immersive advertising or similar strategies.
Missing the chance to counter the online-offline binary narrative
In summary, the General Comment aims to explain how ‘States parties should implement the Convention in relation to the digital environment’ (CRC/C/GC/25, para. 7). The Committee showcases that the rights contained in the CRC are equally applicable in the digital environment and provides clear guidance on how conflicting rights can be balanced. However, this matter-of-fact acceptance of the applicability of children’s rights in the digital space creates the impression that two disconnected sets of children’s rights exist, one for the ‘online’ and one for the ‘offline’ space. Being conscious of the still predominant online-offline binary narrative in many countries, it is crucial to stress that these two separate ‘worlds’ of ‘online’ and ‘offline’ are an artificial construction and do not reflect children’s lived reality. This perceived separation endorses the common misconception amongst member States and practitioners that only ex natura ‘digital’ rights such as right to privacy and access to information apply in the digital environment. Even though the Committee implicitly counters this narrative by discussing all children’s rights in the body of the General Comment, an online-offline conceptualisation at the introductory level would have been helpful to frame the overall discussion. Particularly for countries who are only now embarking on this journey, the implementability of the recommendations in the General Comment will depend on the integrability of these concepts within the existing children’s rights structures and mechanisms. Ultimately, walking a tightrope on an ethernet cable is clearly easier with an analogue balancing pole.