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On World Teachers’ Day 2021. Our latest report: A reflection on the Best Interests of the Child

On World Teachers’ Day 2021 we are pleased to release our latest report: a reflection on the Best Interests of the Child UNCRC principle in the context of the Age Appropriate Design Code

The Age Appropriate Design Code became enforceable from September 2nd, 2021.

The ICO must now navigate a new course that goes beyond the narrow framing of data protection law. With a soon-to-be new Information Commissioner and with sweeping changes to the UK data protection regime ahead, what might it all mean for children, and enforcement of their data rights?

Our new report, written in collaboration with Dr Jonathan Collinson , senior lecturer in law at the University of Huddersfield, reflects on findings that began with a separate literature review to examine where the UNCRC principle, the Best Interests of the Child, has been applied to date.

The report will be launched today, online from 3pm, at our event The Best Interests of the Child: Making digital rights real in UK education. Panel discussion includes Jacob Ohrvik-Stott, Acting Head of Regulatory Futures at the Information Commissioner’s OfficeEmma Nottingham a Senior Lecturer at the University of Winchester, MarkMartin MBE Assistant Professor in Computer Science and Education Practice, New College of the Humanities and Northeastern University and renowned classroom ICT expert, and Jonathan Collinson, co-author of the report being launched at the event and a Senior Lecturer at the University of Huddersfield. The event will be chaired by defenddigitalme founder, Jen Persson. It is signed by Antony Redshaw.

Registration required to attend online. The recording will be posted after the event.

Download the report .pdf [2.7MB]

Permission to share and reuse

This work is distributed under the terms of the Creative Commons Attribution 4.0 international licence attribution share-alike which permits unrestricted use, distribution and reproduction in any medium, provided the original authors and source are credited. (CC BY-SA 4.0). The original illustrations by Gracie Dahl are excluded but may be made available on request.

A summary

The Best Interests of the Child

In our reflection, we came to ten key conclusions with suggestions. We also raise questions of what the principle means in practice. We consider the challenges for industry and the ICO as a regulator and its duty to economic growth, we consider the potential implications of the Code to reduce the role of parents in balancing rights, roles, and responsibilities. What will this look like in practice in ICO assessment of compliance? The Best Interests Framework addresses this role of the parent and child in the question of what privacy policy information may look like but  not much more. How will it be balanced in real life? Will it find the principle should have procedural or substantive obligations?

If the aims of the principle and the Code are to be operationalised in consistent ways  companies need technical standards to set out clear expectations how the ICO will determine the balance between children’s rights, and between children: how they assess the Best Interests of the Child in terms of individuals or as a collective? and reflecting a balance of rights, in context, at a given moment in time? Can the ICO best interests framework and self-assessment risk tool address this?

Age and authority

The Age Appropriate Design Code risks shifting children’s rights compliance to be based by design on age alone, rather than the UNCRC principle which recognises the evolving capacity of a child and autonomy. Age-gating services threaten to create more data risks not only for children, but their parents or guardians, and every adult who must prove they are not a child.

The application of the Code may directly challenge today’s balance of child, parental and company responsibilities. The balance of responsibility for that may move away from parents at the point of their child’s use of digital products as a result, to instead be pre- determined in the architecture and design of tools and services. It could entrench the power of certain companies giving them even more control. But decision-making on demonstrating how a balance of rights is reached will be new for most businesses.

Unintended consequences

We consider its unintended consequences and how this Code may be mis-used to further self-interests by companies or collective interests.

And what about costs? If industry passes on the cost of assessment, its design accommodations, and ongoing compliance to users, then children and their families may bear the brunt of these hidden costs through further economic exploitation of their personal data. The costs of applying the Children’s Code may not only be for business but have unintended implications and costs for children and families in particular where family relationships may end up being exploited beyond the purposes of age assurance. The ICO may end up picking up the costs to support commercial business, as it is doing in its sandbox today, but with little to show for it in the public interest.

The final question we considered is whether the import of a principle from one area of governance into another — child rights into data protection — has inherent conflicts and whether it may result in consequences that go in the other direction, if and when precedents are set in the new digital context?

A new direction of travel

The UK Data Protection regime is complicated by exiting the EU and the announcements by the Department for Digital Media Culture and Sport of consultation on significant change to the UK data governance regime, in Data: A new direction. All this uncertainty and change, creates a challenge for all affected parties.

The Code with its expectations far beyond the ICO remit of data protection, also creates new demands on the ICO to prioritise its capacity, staff skillsets, and enforcement action but could do so in ways that have the potential to threaten its core duties to uphold information rights.

At the same time, we are braced for a review of the Human Rights Act. The effectiveness of the UNCRC is limited due to its weak international enforcement mechanisms and uneven domestic incorporation. By contrast the European Convention on Human Rights (ECHR), although not designed with children specifically in mind, has mechanisms (albeit also with limitations) for enforcement and redress, that include a functional Court. What happens if those mechanisms are lost?

Data protection and the free flow of data do not always prioritise fundamental rights and freedoms. Data protection law can often support highly invasive practices. Privacy law, communications law, equality law, and the full range of human rights are vital to champion in today’s increasingly hostile environment not only from companies, but the state.

While we may look to Codes of Practice for guidance and setting expectations, we conclude that every route for enforcement must be vigorously defended as the mechanism to uphold the full range of children’s human rights in the digital environment.

About the report authors and illustrator

Jonathan Collinson

Jonathan is co-author of the report. He is a Senior Lecturer at the University of Huddersfield and has published a number of peer-reviewed articles on the best interests of the child in the immigration law context. These have evaluated the compliance of existing immigration law with child rights norms and the best interests of the child principle, and has presented normative cases for expanding the legal application of the best interests of the child.

Jen Persson @TheABB

Jen is the everyday face of defenddigitalme as Director and founder and delighted to be releasing our work on the Best Interests of the Child in the context of the Age Appropriate Design Code today, on World Teachers’ Day 2021.

The illustrator is Gracie Dahl