Redefining Attainment of the Best Interests of the Child in the Digital World

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Photo by Montecruz Foto.

In the offline world, education for children does not aim to solely equip them with information. It endeavors to develop in them an ability to interact with the world wisely and critically, while building resilience and a will to participate with effective contribution. They are taught to be agents of their own lives and the United Nations Convention on the Rights of the Child (UNCRC) confers on them the rights which enable this process of development.

However, the UNCRC was adopted as early as 1989, and the children of today are growing up in an increasingly digital environment. This brings to light the need for the recognition of rights online as well as offline, in order to allow children to not merely be users but responsible citizens of the virtual world. This essentially means that the Articles of the Convention require an extension in their scope, and expansive interpretation in national policies, to fulfill the requirement of the ‘best interests of the child’ being the primary consideration guiding action.

Article 3 of the UNCRC sets out the principle of the best interests of the child, which requires relevant authorities to (i) assess and represent rights and interests in nexus with actions and decisions which affect their well being, (ii)consider the views and take account of the evolving capacities of the child and (iii)promote measures to train and support those responsible for the well-being of the child. In doing so, the UNCRC echoes the ‘paramount consideration’ threshold in the enacting of laws, as laid down by the Declaration on the Rights of the Child, 1959.

Legal instruments specific to children are not adequate, however, in their present language, scope and interpretation to be facilitators of a safe digital environment. Recognizing this, there are several ‘updates’ which can be made to the UNCRC. For instance, the Government shall be entrusted with the role to empower and protect in the digital sphere as well, including but not limited to – online as well as offline protection (Article 4), protection of the digital identity (Article 8), freedom of expression but with safeguard measures for access to harmful information, prevention of harassment & engagement in harmful work (Articles 13, 17, 19 and 32). Similarly, Article 16 should include measures to protect the privacy of a child through easy-to-understand explanations for data collection to ensure consent. Essentially, Articles 29 and 39 should endeavor to educate the child and provide support, using online means, to allow them to harness the positive potential of the internet. The Children’s Commissioner in the United Kingdom, recognizing this lacuna, initiated the dialogue through the publication of an ‘edited’ version of the UNCRC in 2017. In conjunction, monitoring measures should include a requirement for States to provide information pertaining to the nexus between rights and digital media in their periodic reports as mandated under the Convention. This would add accountability while providing a measure to ascertain the fulfillment of the best interests of the child.

However, it must be recognized that the Convention alone—even with the modifications to its language, which shall largely result in increased responsibilities for the Government—is not sufficient for the creation of a digital environment conducive to the growth of children without harm. The challenge is that the world-wide-web is age-blind, as well as transnational, not to mention that individual agency is often at the behest of pre-set options far removed from the best interests of the child in such a space. These challenges represent the need for certain complementary actions to accompany the update of the Convention. So what can be possible next steps?

A next step could be a General Comment specific to the rights of the child in the digital age which could define the ambit of expression, protection, play, privacy and information. A partial recognition is clearly visible in the General Comment on the Implementation of the Rights of the Child during Adolescence which highlights that the sense of identity, participation and agency for several adolescents is a result of information, influence and networking within the digital space, and proscribes that states should include children and ascertain areas of breach of safety or violation of rights. As a General Comment, it would provide structured guidance in interpreting the Articles of the UNCRC while creating a normative expectation to be relied on by advocates in lobbying for States to enact recommendations for the promotion of the welfare of children.

Another step could be to recognize the role of other stakeholders and place upon them an equal sense of responsibility. Beginning with the Industry, there is a need for commitment to child centered-design, with minimum standards to be incorporated in the relevant law particular to the jurisdiction, which may require the companies to forgo or find alternatives for design in view of the best interests of the child. The National Human Rights Institutions can play a core role by offering children a complaints mechanism. They can act as a channel for the voices of the children, raise awareness about their rights in the digital space while also pointing out the lacunae of the protection, in practice. The civil society can also play a significant role in advocacy as well as sensitization in training, in collaboration with government institutions, for parents, who play a primary role in the education and dissemination of data pertaining to children.

Above all, it has to be recognized that engagement with children through conversations and awareness raising sessions that facilitate an understanding of the kind of framework that would help them best realize their rights, and participate, while protecting them from harm will be focal to achieving the ends of the Convention. For instance, good practices in this regard could be the dialogues initiated by the Costa Rican National Childhood Council with children about Facebook which led to inappropriate websites being blocked or the initiative by the Australian government to consult with the youth on cyber safety. Further, the attempt should be to ensure inclusive education and communities, for which children with disabilities need to be actively consulted to facilitate access. A children’s digital ombudsman could be viewed as another possible solution.

As it is recognized that the fast-changing complexities of the world of internet cannot be understood or explained in totality, the endeavour should be for all stakeholders to cooperate in the creation of an all-aware, shared-responsibility model in the attainment of the best interests of the child, while ensuring that the agency of the child is not compromised by the digital space creating a ‘spoken for’ subject of rights.

 

Sanskriti Sanghi is a fifth-year undergraduate student of law at the Gujarat National Law University, India. She is an Editorial Intern for the Global Citizen India platform and a Student Editor for the GNLU Journal on Law, Development and Politics. With a keen interest in human rights advocacy and humanitarian assistance, she is currently pursuing an internship for 2 months at an international organization where she engages with gender justice, child safeguarding and climate change and disaster risk reduction. She has also completed a certificate course in Children at the Heart of Humanity with the University of Geneva.