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A Surprisingly Double Edged Sword

France Enacts Law on Strengthening Parental Controls

14.09.2022

In March 2022, France passed a bill titled, ‘Law Aimed at Strengthening Parental Control over Means of Access to the Internet’ (“the Law”) which will amend Article L-34-9-3 of the French Electronics and Communications Code. The Law primarily applies to manufacturers of devices with operating systems (PCs, mobile phones, smart TVs etc.) and imposes a mandatory obligation to provide a pre-installed parental control system within the device. Further, it stipulates that this parental control system must be provided free of any additional cost to the users. However, the Law does not mandate the use of the parental control system by parents and it remains their discretion whether to activate it or not. Additionally, it prohibits the use of the personal data of minors collected by parental control systems in devices for any commercial purpose. The motivation behind enacting such a law was to protect children from content likely to have an adverse impact on their “physical, mental and moral development”. Through this blog post, the author analyses the ‘reasonability’ of the Law by viewing it through the lens of HRC’s (“Human Rights Committee”) three part test of legality, legitimacy and proportionality. The author attempts to do the same by analysing the provisions of the proposed Law with other provisions of French domestic law, the Convention on the Rights of the Child (“CRC”) and other international instruments that France is a signatory to.

Prima facie, the Law is a progressive and laudable step by the French government in its endeavour to protect children from inappropriate content on the internet. Despite mandating its installation, the Law does not force parents to utilize parental control systems and provides for uninstallation free of cost while at the same time spreading awareness regarding means of safeguarding children on the internet. That being said, it is a first of its kind and this blog post seeks to examine whether it is able to strike a balance between the need to protect children from being exposed to internet specific harms and the fundamental freedoms of children to utilize the internet in line with France’s positive obligation under Article 2 of the International Covenant on Civil and Political Rights (“ICCPR”).

Effects of Parental Controls

Parental control systems cover a plethora of software programs designed to allow one user, usually the parent to exercise control over the use of internet by another user, usually the child. It includes features such as content filtering, screen time lock, geolocation monitoring, browsing history and message tracking that vary in their levels of intrusiveness. With the internet becoming an indispensable element in the sphere of education and socialization for children, parental control systems are advertised to be effective tools to protect, guide and prepare them to navigate the online communication spaces safely. According to the Union Nationale des Associations Familiales (“UNAF”) and Google, 95% of parents have some kind of parental control system installed on their children’s devices. Nevertheless, parental control systems are a double-edged sword as tools to make the use of the internet safer for children also have the potential to infringe upon children’s fundamental rights and restrict their freedoms. A study of Android and Apple parental control applications by Penn State University revealed that 89% of the features offered by the applications focused on controlling the child’s activity rather than monitoring it.

There are various potential adverse effects to this. Firstly, it infringes upon a child’s right to freedom of expression and could lead to a chilling effect. HRC’s General Comment 34 on the ICCPR states that a chilling effect occurs when individuals avoid discussing controversial topics because it is unclear as to what is permitted and what is not. As a result of parental control systems, children’s internet activity is guided by the feeling of being surveilled and the fear of future punishment rather than their own curiosity and morals. This results in children avoiding research on matters contrary to public opinion or other issues off the mainstream path. Forbes revealed that 92% of content filtering by parental control systems blocked LGBTQ+ or sex education sites as ‘adult content’. Topics such as sexuality and contraceptives are still largely considered taboos and the internet serves as one of the primary sources of information. The Law runs the risk of censoring it from children and leaves them either without access to this kind of information or unequipped to evaluate information about these topics critically.

Secondly, it restrains children from entering into relationships with peers on the internet. In Coriel and Aurik v. The Netherlands, the HRC observed that the notion of privacy includes within its ambit the right of individuals to enter into relationships with others. This notion of privacy extends to children as well. The internet allows users to go beyond their local vicinity and engage in discourse with likeminded peers from other parts of the world. For instance, a queer teenagerin a homophobic community might find solace in speaking to another queer teenager from a different community that they met on Twitter. This may be hampered by parental control systems which restrain social media interaction or provide reports of the same to parents. A study found that 79% of children’s reviews of parental control applications expressed concerns regarding excessive surveillance of their private correspondences and internet activity.

Thirdly, parental control systems may adversely affect the parent-child relationship by undermining the trust that parents place in their children. This could lead to children circumventing the software to conceal information from their parents and resorting to unhealthy means like using others’ devices or going incognito. Lastly, studies also suggest that parental control systems impair a child’s decision making and risk management skills in a fully digitized world.

Adolescence and Parental Controls

Another conundrum worth contemplating is the applicability of the Law for adolescents. The Law authorizes and promotes parents to set up parental control systems in the devices of all “children”. The term “children” is defined in Section 388 of the Civil Code of France as any individual under the age of 18 years. The aforementioned issues would be further exacerbated when applied to mature adolescents. The Convention on the Rights of the Child (“CRC”) describes adolescence as the period when a child develops into an adult. While it is difficult to ascertain exactly when a child attains puberty, it usually happens between 12 to 18 years. Furthermore, adolescents are not treated the same as children in many legal systems. This sentiment is conveyed in U.S. Supreme Court’s Justice Douglas’s observation in Wisconsin v. Yoder, wherein he argued that, “-the moral and intellectual maturity of a 14 year old adolescent approaches that of an adult.”

There exists a grey area between legal childhood and legal adulthood and the line between these two is often crossed at different times during adolescence. For instance, according to Article 227-25 of the French Penal Code, the age of consent for sexual intercourse in France is 15 years. The French Public Health Code makes it a right for minors to obtain contraceptives and maintains their confidentiality. In fact, Article L-2212 of the same Code states that parental consent is not necessary even for medical procedures like abortions and should the child not wish to disclose their pregnancy to their parents, this will be respected. Even complete emancipation of adolescents aged 16 and above is allowed in France. Thus, it is manifest that France awards significant level of autonomy and privacy to adolescents in its domestic laws. The present Law on parental controls would not only unduly restrict this autonomy and privacy, but also be in contravention with its international obligations thereby violating France’s positive obligation under Article 2 of the ICCPR.

Article 5 of the CRC states that the supervisory right of parents to regulate a child’s right to privacy is subject to the evolving capacities of the child. As the child grows older and there is a shift from dependency on parents to self-reliance, the right diminishes. Further, UNICEF warns against excessive parental interference because it would limit adolescents’ freedom of expression and right to privacy. In fact, the France’s own Data Operation Agency (“Commission nationale de l’informatique et des libertés” in the following “CNIL”) issued recommendations for enhanced protection of children online, wherein, Recommendation 5 while endorsing parental control systems warned against intrusive features of parental control systems that may not be proportionate to the child’s age and maturity.

Presently, the Law raises concerns with respect to its application to adolescents because it does not specify any exceptions for adolescents or the kind of parental controls system to be used for adolescents to ensure their autonomy and privacy.

Issues in Implementation

The aforementioned Article 5 of the CRC also provides that parents and others who care for the child have the right to restrict a child’s rights in view of providing direction and guidance. A wide margin of discretion is granted for the same by the Convention. It may be contended that parents have the right to utilize parental control software since it is within this supervisory right to provide guidance. However, ICCPR, CRC and UNHRC jurisprudence state that any restriction imposed on an individual’s fundamental right to freedom of expression or privacy, must be justified and it must be “reasonable”. As observed by the HRC in Van Hulst v. Netherlands, Toonen v. Australia, G v. Australia and other decisions, for a restriction to be deemed “reasonable”, it must be lawful and non-arbitrary by pursuing a legitimate aim through the least restrictive means possible. Therefore, certain measures must be taken to ensure the reasonability of a legislation, especially if it concerns children.

General Comment 25 of the CRC on the rights of children in the digital sphere makes it the State’s obligation to consult children and take their opinion on a piece of legislation into consideration before enacting it, if it directly impacts their rights. It directs States to ensure that any content control and moderation guidelines issued by service providers is balanced against children’s right to freedom of expression and privacy.

One might argue that France has not violated any of these provisions since the Law does not mandate that parents impose parental controls systems upon their children, it simply ensures that all devices being sold in the market have parental controls systems installed in them. However, in normalising parental control systems, the Law in any case nudges parents to make use of them. Moreover, while interpreting a legislation, the context and consequences must be taken into account as well. By implementing the Law, France will indirectly provide State sanction and endorsement to the practice of parents imposing parental control systems on their children immaterial of their age. In Sunday Times v. The UK, the European Court of Human Rights (“ECtHR”) observed that domestic laws ought to provide unambiguous definitions for matters they seek to legislate in order to allow individuals to their conduct accordingly. The Law as it stands is not sufficiently precise because it fails to provide definitions for the term ‘parental control systems’ or demarcate any criteria and features for them. This leaves excessive room for interpretation to the intermediaries and parents. For instance, Apple allows parents to make a customizable list of blocked websites on the internet irrespective of whether they are inappropriate for children or not. Similarly, Microsoft disables any form of private browsing and provides weekly reports on all the content browsed by children to the parents. Both are features which would not fall under the ambit of “reasonable” restrictions since they are not the least restrictive means but would be permissible under the proposed Law.

The Way Forward

Through this blog post, the author has discussed how the French Law on parental controls albeit enacted with the intent of protecting children on the internet could end up impinging up on the children’s fundamental right to privacy and freedom of expression. Article 4 of the Law delegates it to the CNIL to determine the functionalities and technical characteristics of the parental controls systems to be installed. The CNIL would also release details on the methods of installing the parental controls system and the manner of punishment for non-compliance. These guidelines by the CNIL could provide clarity and specificity on the presently overbroad legislation. The Law should also elucidate on its applicability to adolescents and set up a redressal mechanism against overly intrusive parental controls systems. Only after these guidelines are published can one truly gauge the “reasonability” of the Law. Therefore, the question of whether the Law is in compliance with France’s international obligations stands to be answered based on further guidelines issued by CNIL but as it stands, the author is of the opinion that the law is overbroad and could have a chilling effect among children.

Recommendations must be sought and incorporated from the stakeholders involved i.e., the children, parents, educators, and intermediaries in order to make the Law more suitable to those affected by it. This will assist in developing standardised features for parental control systems with varying levels of restrictions based on the age of the child.

Ultimately, parental control systems are a stopgap measure to protecting children on the internet. They tend to provide a false sense of security to parents but in the long run, could prove to be detrimental to the intellectual development of children and infringe upon their rights. Instead, countries should invest in making the task of protecting children on the internet a collaborative effort between the parents and the children themselves. This could be achieved through awareness programs and promotion of self-regulating software on the internet for children’s devices.

Author
Jayalakshmi Sankar

Jayalakshmi Sankar is a third year law student at National Law Institute University, Bhopal and a member of the Editorial Board of the NLIU Law Review Journal.

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