The Best Interests of the Child in the context of the Age Appropriate Design Code

The Age Appropriate Design Code became enforceable from September 2nd 2021. Will it have the effects its 15 standards set out to achieve? The ICO must navigate a new course that goes beyond the narrow framing of data protection law. With a soon-to-be new Commissioner at the helm and with changes to UK data protection law that lie ahead, what might it all mean for children?

Our 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.

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

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Click to download the report here .pdf [2.7MB]

A Reflection on the Best Interests of the Child UNCRC Principle in the Context of the Age Appropriate Design Code (defend digital me, 2021)

Watch the event from October 5, 2021

On October 5th, join us for a one hour panel Q&A discussion on making digital rights a reality in the classroom. We’ve lots of questions that our panel will discuss. Is the ICO expecting to assess the Best Interests of the Child as a substantive or procedural obligation? Does the Code apply to data controllers and data processors any differently? Can the Right to Object in data protection law ever work for school children? How can school staff have clarity, confidence and consistency in the procurement decisions they are making? Is there progress in developing technical standards and tools to enable choice and control? Can children realise their rights in the classroom?Registration required to attend. The recording will be posted after the event. Bring your questions to join in. The event will be live and signed. Free. Donations are also welcome.

We were delighted to welcome panelists from practice, academics and the Regulator the ICO, to participate in discussion.

The Best Interests of the Child is a richly textured principle, encompassing a range of interests which are given expression as substantive human rights in the UN Convention on the Rights of the Child (UNCRC). These rights include positive rights to fundamental rights and freedoms; like the right to privacy, rights to life, survival and development. Article 31 gives rights to access leisure, play and culture. Children have rights and freedoms to political expression and to express their identity; to seek, access and impart information; to have freedom of thought, conscience and religion; to freely associate with others; and to education.

The UNCRC also demands freedom from things, including from mental violence, from economic exploitation, and from sexual exploitation. A wide range of potential harms which children have a right to be protected against have been identified in the children’s rights literature as relevant to the digital context and the Best Interests Principle.

However, the UNCRC is emphatically not just about protecting children as vulnerable objects of care who require protection. The UNCRC is founded on the idea that children also possess agency to participate in the social world, and that their participation rights are also important to uphold. Reducing the rights of children in the digital sphere to focus only on rights to be protected from harms therefore devalues the totality of children’s rights.

2. Balancing rights, roles, and responsibilities

State regulation fails when it fails to protect children from harms, but it also fails when it considers the Best Interests of the Child as only encompassing a responsibility to protect and ignoring children’s agency. The balance between competing rights and the responsibilities of the duty bearers might or might not be obvious: devising rights’ respecting public policy is therefore complex.

The nature of the Best Interests of the Child is patriarchal by design. Adults deciding for children can undermine children’s autonomy and agency. But the role of parents and state are expressly recognised as separate in the UNCRC Articles 3, 5 and 18 and frequently mentioned in the UNCRC. The application of the Code may directly challenge today’s balance of child, parental and company responsibilities. In fact some would argue that is its purpose, to support parents by reducing their role in policing the design of children’s apps and platforms, and pushing it back to companies.

The UNCRC Article 18 is explicit and the courts for example in the Named Persons case (para 72), have discussed this balance before.

“Articles 27(3) and 18(2) make it clear that the state’s role is to assist the parents in carrying out their responsibilities”

“States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.”

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.

The Age Appropriate Design Code also 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.

This decision-making on how a balance of rights is reached will be new for most businesses. 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.

3. A substantive or procedural obligation?

A key question is whether the Best Interests Principle is expected to be assessed as a substantive or procedural obligation on digital service providers? And how will the best interests of the child as “a primary consideration” be demonstrated?

If the aims of the principle and the Code are to be operationalised in consistent ways  companies need clarity of 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? Can the ICO best interests framework and self-assessment risk tool address this?

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 in the other direction if and when precedents are set in the new context.

4. Impacts of the changing data protection environment

The UK Data Protection regime is complicated by exiting the EU and announcements by the Department for Digital Media Culture and Sport that suggest more changes ahead. All this uncertainty and change, creates a challenge for both setting expectations and enforcement.

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) that include a functional Court.

While we 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.