Leaving the Pre-Digital Era, Finally!

The UN human rights protection system has left the pre-digital era behind: The UN Committee on the Rights of the Child just released its new General Comment (GC) No. 25 on children’s rights in relation to the digital environment. This GC gives guidance on how to respect, protect and fulfil children’s rights in the digital environment. It also has the potential of setting a milestone for the human rights protection in general – since it is the first GC of a UN human rights treaty body explicitly addressing the digital environment and its impacts on human rights. The result is more than respectable – the GC sets the whole UN Convention on the Rights of the Child (UNCRC) in a new light and gives new guidance on almost every article of the UNCRC. Yet alone the drafting process of this GC is remarkable – two years, two rounds of consultations (including consultations with 709 children), and more than 100 written submissions on an earlier draft – among them from tech enterprises like Google. Already from the beginning of the drafting process it was obvious that this GC would draw attention – and it is no wonder that the EU and many other international organisations very quickly welcomed the adoption of this new GC.

The digital environment was not originally designed for children and neither was the UNCRC designed for the digital environment – yet, children are nowadays a relevant group of users in the digital environment (UNICEF estimates that one in three Internet users are children). The digital environment can have impact on all areas of a child’s life and thus on all children’s rights. But that is anything but a cause for concern – as long as the possibilities of the digital environment are actually exhausted.

A Positive Approach: Enabling and Empowering

The digital environment offers many new opportunities for the realization of children’s rights, but also poses new significant risks of their violation or abuse (para. 3). The Committee decided to emphasize the positive sides. This positive approach is consistent because the digital environment – provided it is a safe environment – can be very empowering. It can help to realize the full range of civil, political, cultural, economic and social rights (para. 4) and support children in becoming more independent (para. 19). The GC explicitly highlights opportunities provided by the digital environment: It can bring children – including children human rights defenders, as well as children in vulnerable situations – together. This can help in forming identities and exchanging with peers especially when it is about sharing (negative) experiences (paras. 58, 64, 66). One should not underestimate the importance of this function – it was mentioned by many children consulted in the drafting of the GC.

Furthermore, the digital environment can create new possibilities, like new avenues in social participation (especially for children with disabilities – see para. 89), access to high-quality inclusive education (para 99) or to information (para 50). Information is the currency of the 21^st century, and especially for children in very vulnerable situations this kind of access to information can have life-saving character (para 121) or life-changing character (especially when information is under a social stigma). Yet, as the flood of information becomes unmanageable, and as it is increasingly difficult to verify information and to identify inaccurate information, many challenges arise. Dealing with disinformation is also from a children’s rights perspective a relevant digital challenge.

Besides, the digital environment offers crucial opportunities for children’s voices to be heard in matters that affect them (para. 16). That is why state agencies should use in particular digital channels to consult children (para. 18).

This positive approach and its different backgrounds are accompanied by three basic tasks for state agencies, enterprises, parents, caregivers and human rights defenders: First, they need to appreciate how children can benefit from digital products and services and develop their digital literacy and skills. Second, they ought to know how to protect children’s privacy and prevent victimization. Third, they require skills on how to recognize a child who is a victim of harm perpetrated online or offline and respond appropriately (para. 32).

Thus, a lot needs to be done and this GC gives lots of guidance. I would like to focus on two aspects on which the GC gives in particular interesting guidance: digital inclusion and business and human rights in the digital environment.

The Ongoing Challenge: The Human Right to Digital Inclusion

Just from the beginning, the COVID-19 pandemic has enforced existing inequalities and especially children living in vulnerable situations were hit particularly hard by the effects of the pandemic.

With respect to the digital environment, there has been especially one brutal truth: In many states, lagging behind in digitalisation issues led to immediate human rights violations (like the right to education) because the impact of the pandemic could only by compensated (but not balanced) by digital solutions. (Not only) these experiences should be the reason for a holistic approach on digital issues: We need to accept that there is a human right to digital inclusion (para. 4). The Committee explicitly speaks of digital inclusion yet does not frame it explicitly as an independent human right. It could have done so since we know very well that inclusion is a fundamental principle in human rights law (see Art. 3 UN CRPD) – and fundamental principles in human rights law can be substantial human rights themselves (see para. 6 of the CRC GC No. 14)

This right is premised upon the availability of devices and an internet connection – but there is much more: The right to digital inclusion grants having equal, safe and effective access to the digital environment in meaningful ways which includes knowledge of the usage of digital technologies (“digital literacy”). The right to digital inclusion is challenged by distinct risks of discrimination in the digital environment among them discrimination based on automated processes and algorithms and hateful communications (which are often directed against children in vulnerable situations like children identifying as LGBTIQ+). It lies within the obligation of states to take proactive measures regarding these issues (para. 11.). With respect to children with disabilities, the Committee suggests a fitting answer to challenges like these: They should be involved in the design and delivery of digital policies, products and services (para. 91). This approach should not only apply to children with disabilities but to all children, especially those living in vulnerable situations.

It appears best to identify and address state obligations arising from the right to digital inclusion by using the well-established 4A-scheme for certain economic, social and cultural rights (see para. 6 of the CESCR GC No. 13): The right to digital inclusion raises questions on availability, accessibility, acceptability, and adaptability. While this can be a good tool to make states obligations visible, the realization of the right to digital inclusion lies not only within the responsibilities of states – especially tech enterprises play a role of utmost importance.

It’s All About Regulation: New Impulses for the Debate on Business and Human Rights

In the digital environment, children are economic actors too – whether they pay for any services or not. Using, creating, and sharing content is enough (para. 112) to be relevant for the business sector in the digital environment. As economic actors in the digital environment, children may be exposed to certain risks, especially in the context of algorithms and automated processes of information filtering, profiling, marketing and decision-making. They can manipulate or interfere with children’s ability to form and express their opinions in the digital environment (para. 61), influence their behaviour or emotions (para. 62) and lead to forms of discrimination (para. 11). Yet, these automated processes became routine (para. 68)

Therefore, the Committee explicitly addresses the responsibilities of the business sector – and the obligations of states to ensure that businesses meet those responsibilities. (para 35). Developing, implementing, monitoring and evaluating legislation, regulations and policies (para. 36) is a common standard in the field of business and human rights. But the Committee at least also indirectly addresses what businesses need to do to comply with their human rights obligations: In particular, they must establish effective complaint mechanisms which are accessible in a child-friendly manner (para. 47). These complaint mechanisms do not replace state-based remedies (para. 48). However, if the recommendation is taken seriously, it might give many businesses lots of homework: In CRC GC No. 12, the Committee already specified the requirements a complaint mechanism must meet (see para. 134 of the CRC GC No. 12). With regard to complaint mechanisms in the digital environment, respect for children’s privacy is of utmost importance – making the possibility of anonymous inquiries indispensable.

Furthermore, one of the strongest recommendations in this GC is linked to the business sector too: The Committee recommends that the profiling or targeting of children for commercial purposes based on a digital record of their characteristics be prohibited by law (para. 42) – this is quite remarkable as the Committee rarely recommends prohibitions. This clear recommendation may have required some courage since its implementation would make many advertising strategies unlawful. Yet, this unambiguous recommendation is highly appreciated – especially since a study for the European Parliament called for guidance on profiling and automated decision-making.

The CRC as a Human Rights Seismograph

In recent years, the Committee often used to be the first UN human rights treaty body to deal with rising fundamental questions in human rights law – it has done so in relation to business and human rights, public budgeting and general issues on migration (1 and 2). Taking the digital environment as the topic for the current General Comment was an excellent choice –the lack of guidance on this matter was obvious. Besides, children are a relevant group of users in the digital environment. Let’s hope that many states and businesses will take this GC as guidance!