The main theme of these notes will be the increasing ‘datafication’ of children online and special attention is given to children’s rights to privacy and data protection. We will then move on to the specific protection for children’s personal data as provided by data protection law.
Contai...
Week 8:
A Children’s Rights Perspective to Data Protection Law:
Objective:
- Critically evaluate data protection law in light of children’s rights
- Intro: Children as the datafied generation
o The United Nations Convention on the Rights of the Child
o Children in the GDPR
o Case study: targeted advertising
Children as the ‘datafied’ generation:
- Where is children’s data shared and collected? By whom? For what purposes?
o Educational
o Health data
o Social media
o Youtube stars- marketing sharing their info
o Parents- sharing kids data
Commercialisation of children’s lives:
- “Datafication practices are part of a carefully orchestrated game plan, in which internet companies immerse users in
interactive digital environments and nudge them to disclose their innermost thoughts and feelings as well as forecast
inclinations” (van der Hof, 2017)
o Children as digital natives
o Being raised in this culture
- Children are also an important target group for advertisers - representing 3 markets
o Primary market [themselves]
o Parental market
Children impact what purchasing decisions parents make
o Future market [spending habit continuing- close ties w/ brand]
Children’s rights:
- Why do children have specific rights? Who is considered to be a child? What is the role of these rights in the digital
environment?
- Some arguing that children don’t need a specific subset of rights because they’re already human- so are already afforded
rights
o Others arguing that because they’re children, they are often ignored and their rights undermined - so need
specific set of rights.
E.g. right to play, education
o ‘UNCRC – distinct subset of human rights
Children are active right holders, because they are children
Most ratified instrument of international law- general agreement as to the convention’s importance.
US haven’t ratified it- they’ve just signed it
Thought that the fact that children were active right holders, they could exercise their rights
upon their parents. Parents having to listen to children rather than the other way around. Saw
right to privacy as parent’s inability to go into their children’s rooms.
Worried that it would give the US govt significant power over parent authority- over topics
like home-schooling
Who has these rights?
- “Children”
o A child is every human being below the age of eighteen years of age unless under the law applicable to the
child, majority is attained earlier” (United Nations Convention on the Rights of the Child)
Wanting it to be broad but also allowing MS to have leeway
o “…the term "minor" shall include all persons under 18years of age. A Party may, however, require a lower
age-limit, which shall be not less than 16 years.” (Council of Europe Cybercrime Convention)
o “Children refers to those twelve and under, and teenagers refers to those between the ages of thirteen and
eighteen. Minors is used to refer to both groups together” (Etzioni, 2004)
Children’s rights online:
- Early approaches:
o ‘emerged from concerns about pornography & other unsuited content
o focused on the protection of children, shielding them from inappropriate content and contact
Pornography
- Active right holder- can exercise; not passive
o Wanting them to be able to participate
- Underlying goal = right to ‘optimal’ development
o Multidimensional “Three P’s”- need to balance
, Protection
Participation Provision
- ‘The regulatory protections for children online (for instance in data protection law) have to attain a balance
between protection, participation and provision.
o To achieve optimal development
Children’s rights online:
- Children’s rights principles:
o Development; non-discrimination, best interests of the child; right to be heard
- Rights that enable children to reach their fullest potential:
o Freedom of thought
o School and educational goals
o Participation in leisure and play
o Privacy
o Protection against economic exploitation
Protection:
- Right to wellbeing and development
- Protection against harmful content
- Protection against economic exploitation
- Right to privacy.
o Exploitation- used to just be a protection against child labour, but not understanding it in a digital context
o e.g. in a commercial context; harmful advertising.
o Children development: online- could become really materialistic - could have an impact on parent-child
relationship
Participation:
- Right to access broad value of good quality media
- Right to freedom of assembly
- Right to play
- Right to freedom of expression/thought
o Policy makers need to keep this in account when trying to protect children they are allowed/encouraged to
participate
Provision:
- Right to education/privacy literacy
- Access to information
o Digital literacy
Children’s right to privacy [and data protection] in Article 16 CRC:
- Data protection not named explicitly- no specific data protection
- Protection dimension:
o no arbitrary or unlawful interferences with their privacy, family, home or correspondence
o no unlawful attacks on their honour and reputation
- Participation dimension:
o autonomy and control over the aspects of the identity one wants to project to the outside world
o being able to explore the digital environment without supervision, experimenting
o Without parents or companies monitoring
- Provision dimension:
o Privacy literacy education, child-friendly information
o providing child-appropriate online services without excessive data collection
Children’s rights to privacy and data protection in Europe
- CoE Law: Article 8 ECHR
o ECtHR rarely refers to article 16 CRC in its case law on Article 8 ECHR
K.U. v. Finland [2008]: Identity theft
“the positive obligation under Article 8 of the ECHR not only to criminalise offences but also
to effectively investigate and prosecute them, assumes even greater importance when the
physical and moral welfare of a child is threatened.”
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