This month the Committee of Ministers of the Council of Europe (COE) adopted guidelines and recommendations on the rights of children in the digital environment for all Member States of the Council of Europe. See Committee of Ministers, Recommendation CM/Rec(2018) 7 of the Committee of Ministers to member States on Guidelines to respect, protect, and fulfil the rights of the child in the digital environment (2018). While the guidelines are non-binding, they derive their content, in part, from existing binding COE legal conventions, as well as other non-binding COE and United Nations standards and recommendations, on children’s rights, business and human rights, privacy, and internet governance. The guidelines focus, in particular, on the rights to non-discrimination, freedom of expression and information, freedom of association, privacy, education, and protection and safety, as well as access to remedies. See id. Recognizing the significant positive and negative influences the digital environment – which includes all information and communication technologies (ICTs) – has on children’s lives, the guidelines make recommendations to Member States to develop legislation and policies that protect and promote the rights of the child in the digital environment, to cooperate and coordinate with the COE and public and private stakeholders in those efforts, and to ensure that businesses and other stakeholders respect children’s rights. See id. at sec. 1.
Rights and Responsibilities Under the Guidelines
The guidelines highlight that the rights of the child should be applied without discrimination on any grounds in the digital environment; however, the guidelines recognize the susceptibility of children in vulnerable groups, and note that States may need to adopt additional measures to protect children in vulnerable situations online. See id. at paras. 3-4.
Freedom of Expression and Access to Information
Children have a right to, the guidelines state, access to information on their rights, to information on mechanisms that can provide redress for violations of rights, and “content specifically intended for children.” See id. at paras. 6, 11. Further, the guidelines note that children have a right to be heard and to express their views “through the media of their choice, and irrespective of whether or not their views and opinions are received favorably by the State or other stakeholders.” See id. at paras. 5-7, 16.
The guidelines call on States to educate children on how to exercise their right to freedom of expression digitally, respecting the rights and dignity of other children and individuals, and to inform children of any restrictions on this right. See id. at paras. 17, 20. Further, the promotion and protection of these rights may require that States provide children with opportunities to use ICTs to express themselves, engage with children when developing and implementing legislation that impacts their rights in the digital environment, and provide information to children on their rights and on available remedial mechanisms should their rights be violated. See id. at paras. 5-7. States, the guidelines continue, have a responsibility to ensure access to digital medium, including “affordable and secure access to devices, connectivity, [and] services” to ensure these rights, as well as other rights. See id. at paras. 10-11.
Freedom of Association
The guidelines also recognize that children’s rights to participate, to engage in play, and to freedom of association may be realized through “online communication, gaming, networking and entertainment.” See id. at para. 21. The guidelines call on States and other stakeholders to facilitate access to these digital activities by providing incentives for and guidance on the creation and distribution of tools that facilitate social and recreational platforms. See id. at paras. 22-24.
Children’s right to privacy protects children’s personal data, correspondence, and private communications. See id. at para. 26. The guidelines call on States to ensure that data processors and persons with access to a child’s data respect the child’s right to privacy and data protection, and to implement heightened protections for “sensitive” data that could be used to identify a child. See id. at paras. 26, 27, 32. Identifying information includes, for example, biometric or genetic data, or information on past criminal convictions. See id. at para. 32. The guidelines emphasize the need for consent to data processing or data collection, either by a child or a child’s parent or guardian, and the need to have child-informed procedures in place that are age appropriate for explaining privacy rights to children. See id. at paras. 27-34.
The right to education in the digital environment not only requires that States promote and encourage digital literacy, but also that digital tools are used to develop a child’s mental and physical abilities to their full potential. See id. at paras. 40-46. In particular, the guidelines note that States should make efforts to promote the use of digital educational tools and resources for children with disabilities and girls. See id. at paras. 45-46.
Protection and Safety
The guidelines discuss children’s right to protection from violence, exploitation, and abuse, which States should monitor and adopt measures to prevent. See id. at paras. 52-53. The guidelines highlight four areas that pose risks to children in the digital environment: contact risks, content risks, conduct risks, and health risks. See id. at para. 51. Contact risks refer to sexual exploitation and abuse, trafficking, and online recruitment to engage in criminal activities or participate in extremist movements. See id. Content risks refer to the stereotypical portrayal of individuals and over-sexualization of women and children, glorification of violence, discriminatory or racist expressions, and advertisements of adult content. See id. Conduct risks refer to hate speech, bullying, gambling, and illegal downloading, among others. See id. Finally, health risks refer to the potential for sleep deprivation and physical harm that may result from excessive use. See id. The guidelines warn that measures to protect and prevent these risks should not “unduly restrict the exercise of other rights.” See id. at para. 50.
Finally, the guidelines also recognize the right to an effective remedy when children’s rights have been infringed in the digital environment. See id. at paras. 67-71. The right to an effective remedy not only requires that States ensure that remedies are accessible to children and their parents or legal guardians, but also that States ensure that business enterprises provide remedial mechanisms that are accessible and age appropriate. See id. at paras. 70-71. Policies and measures that business enterprises adopt should comply with the standards set out in the United Nations Guiding Principles on Business and Human Rights. See id.
Recommendations to Member States
In addition to elaborating on the measures that States should adopt to protect the rights discussed above, the guidelines further include specific recommendations to Member States to impose requirements on businesses to ensure children’s rights; to widely disseminate the COE’s guidelines, including in a child-friendly manner; to cooperate with the COE in implementation of the guidelines; and to adopt child-centered legal frameworks and policies, including by taking into account the best interest of the child. See id. at sec. 1, and paras. 1, 2, 72-79. On cooperation with the COE, the guidelines urge States to, with the COE, monitor the programs that exist or are created with the aim of protecting the rights of the child in the digital environment; to maintain a dialogue on future action plans, legislation, or strategies in this area with the COE; and to allow the Committee of Ministers and relevant stakeholders to review implementation every five years. See id. at sec. 1.
COE Standards and Recommendations on Children’s Digital Rights
In addition to these guidelines, the COE has previously called for special protections for children in the digital environment. See COE, The digital environment. For example, the Council of Europe Strategy for the rights of the child (2016-2021) focuses on children’s rights on the internet. See id. Importantly, several regional conventions, which have a legally binding effect, set forth applicable legal standards in this area, including the Convention on Cybercrime, the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, and the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. The European Court of Human Rights, a regional human rights court created under the auspices of the COE, has issued binding caselaw on the protection of children from some of the harms on the internet. See, e.g., ECtHR, Factsheet – Protection of minors (March 2018).
The Council of Europe is a regional European human rights organization that is composed of 47 Member States who have signed and ratified the European Convention on Human Rights. See COE, Who we are. Several monitoring bodies within the COE play a role in monitoring children’s rights. For example, the Lanzarote Committee is tasked with monitoring sexual exploitation and abuse among children, specifically for ensuring that States have effectively implemented the Lanzarote Convention.