By Maria Inês Costa (Master in Human Rights from UMinho)
Given the rapid technological evolution in the so-called Digital Decade, and the need for legal regulation in view of the emerging needs and circumstances that this evolution has brought about, the European Union has been taking a position to strengthen the protection of children’s rights in this context. One of the most recent paradigmatic examples of this approach is the new European strategy for a better internet for kids (BIK+), published in May 2022, about two years after the outbreak of the COVID-19 pandemic which increased the use of digital media.
According to Article 24(2) of the CFREU, “in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration”, and to that extent, the digital transition should be carried out keeping in mind the advantages that these bring to children, for example, as a source of inexhaustible knowledge, but also the dangers it entails and the exacerbation of inequalities it leads to, when there is no governance of its use and access.
As per item 3 of the UN’s General comment N.º 25 (2021) on children’s rights in relation to the digital environment, the children consulted asked questions regarding the new developments in the digital age that directly affect them – “I would like to obtain clarity about what really happens with my data… Why collect it? How is it being collected?”; “I am… worried about my data being shared” – and in the subsequent paragraph (item 4) one can read: “innovations in digital technologies affect children’s lives and their rights in ways that are wide-ranging and interdependent (…)”.
Aware of its fundamental role in protecting the rights of the child, the European Union has shown concern about playing its part in pursuing the goals outlined in the UN Convention on the Rights of the Child, ratified by all Member States of the Union, and bearing in mind the new circumstances that this era presents. In this regard, we highlight a few excerpts from the EU strategy on the rights of the child, published in 2021, which underscore the range of issues affecting children in this new age: “the COVID-19 pandemic has exacerbated existing challenges and inequalities and created new ones. Children have been exposed to increased domestic violence and online abuse and exploitation, cyberbullying and more child sexual abuse material has been shared online (…) The shift to distance learning disproportionately affected very young children, those with special needs, those living in poverty (…) and in remote and rural areas, lacking access to internet connections and IT equipment.”
The European Commission’s proposal in January 2022 for a joint solemn declaration on digital rights can be considered one of the cornerstones of the ongoing efforts to meet the demanding and sundry challenges imposed by the digital transition and pre-existent social and economic discrepancies, including those mentioned above. In this sense,the European Declaration on Digital Rights and Principles for the Digital Decade, the content of which is intended to complement the rights enshrined in the EU Charter of Fundamental Rights, and data protection and privacy legislation, declares a commitment to ensure “a safe, secure and fair online environment where fundamental rights are protected” and specifically – where children and youth are concerned – i) to promote “a positive, age-appropriate and safe digital environment for children and young people”, ii) to provide “opportunities to all children to acquire the necessary skills and competences to navigate the online environment actively, safely and make informed choices when online” and, last but not least, iii) to protect “all children against harmful and illegal content, exploitation, manipulation and abuse online, and preventing the digital space from being used to commit or facilitate crimes.”
Thus, it is worth noting that the European Union’s approach to building the Digital Age in the European arena aims to follow a set of well-established rules, built upon a comprehensive action plan, preventing the creation of policy and governance vacuums and the subsequent increase of its citizens’ vulnerability to these new realities. In turn, it is important to keep in mind that children are, per se, a vulnerable group, and the protection of the human rights of vulnerable groups takes on added importance and requires additional guarantees.
In the introductory chapter of the Communication from the Commission on the new European strategy for a better Internet for kids (BIK+), one can read that this new instrument was created in a time of frequent use of online services and tools by children and the youth, many of which were not created with the specificities of this age group in mind. In this context, reference is made to the Digital Services Act  – a proposal for a Regulation on which there is already a political agreement for its approval – that aims at the empowerment and protection of internet users through various provisions, including measures to “counter illegal goods, services or content online” and through “new safeguards for the protection of minors and limits on the use of sensitive personal data for targeted advertising.”
In fact, there are several concerns that can be raised in this scope. It is important to pay attention to what are the pressing trends and risks as regards the extensive use of the Internet by young people and children. In this sense, it is worth highlighting the publication by the European Commission of the Report on the DigitalDecade4YOUth consultation in May 2022, whose main objective was to identify the impact of the digital age on the rights of those age groups and assess the outlook of these young people on this fast-changing world, and what they consider to be opportunities for growth and/or risks with the use of these online technologies. The active consultation with young people to produce this report is in line with their right to be heard on issues that affect them, and as a matter of fact, this demographic is quite engaged with the virtual world these days, a place where their actions or the actions of others can affect their rights.
On the one hand, as Bouchagiar and Bottis (2019) stress, one should keep in mind that,“[a]s emerging persons, they [the children and the youth] need to have the right to develop, to turn into autonomous agents. To do so, they need privacy; the ability to see themselves as autonomous, to learn that they are capable of controlling when and by whom the thoughts in their head will be experienced by someone other than themselves, and to learn that they are entitled to such control (…)”. On the other hand, there are also warnings to the effect that, despite their ease and enthusiasm for all things digital, “children have less critical understanding of present and future risks to their wellbeing posed by the use of the digital environment than many adults. Most research attention has concentrated on teenagers, but increasingly the very youngest children are becoming regular uses of the internet”.
This demographic group is characteristically heterogeneous, and several questions arise about its capacity for agency and autonomy in the context of the digitalized world, yet we will not delve into the details of this debate, leaving only a suggestion that it legitimately raises questions and discussion from both a moral and legal standpoint.
The Report aforementioned stresses that the consultation carried out with children and young people demonstrated that they can point to both positive and negative aspects of internet use, and to that extent, while they are able to entertain themselves, learn and be constantly connected to their friends and family, they also show concern about hateful content, cyber-bullying, misinformation and lack of privacy. They also displayed an understanding that these risks are heightened when hateful content targets marginalized people or people with disabilities.
Regarding the recommendations made to policy makers, both young people and children, as well as teachers and educators were on the same page, by considering it extremely relevant to improve media literacy, to put pressure on industry to provide safe and child-appropriate services and platforms, and to make use of strengthened monitoring. In this sense, children and young people feel that when they report hateful content or behavior on social media platforms, no action is actually taken, and this discourages them from reporting or acting against hate speech, which in effect makes the internet a less safe place, and the aspiration is to move in the opposite direction of this trend.
In essence, the BIK+ strategy draws on the outputs of the EU Youth Strategy 2019-2027 which aims to engage young people in active participation in democratic life. As part of this strategy, the Commission commits itself, among other provisions, i) to “encourage and facilitate the design of a comprehensive EU code of conduct on age-appropriate design (…)”; ii) to “issue a standardisation request for a European standard on online age assurance/age verification in the context of the eID proposal, from 2023”; iii) to “co-fund the safer internet helplines and hotlines in the EU including those recognised in the future as ‘trusted flaggers’ under the DSA, to assist (…) children, when confronted with harmful and illegal content, from 2022”; iv) to “share the recommendations related to (cyber)bullying (…)”; v) to “support the monitoring of the impact of the digital transformation on children’s well-being (…)”; vi) to “promote the exchange of good practices for national curricula on media literacy between Member States and amongst schools and educators across the EU (…)”; vii) to “organise media literacy campaigns targeting children, teachers, parents and carers (…).” With this in mind, one can perceive this strategy aims to address two important realities: one is to protect children from the amount of potentially harmful content and latent risks of Internet use, but also to empower them to use the new media more wisely and effectively.
The inequalities in children’s access to the Internet around the world (the digital divide), the mental and physical health effects of its use that are being explored, and the threats, as well as the opportunities for growth, learning, and entertainment that it poses are crucial factors that international institutions are focusing their attention on as the world evolves at an unprecedented pace, and regulation appropriate to the circumstances is urgently needed.
Bearing in mind that we cannot cover here all the initiatives and actions that are being proposed and implemented in this area, we stress that it is important to pay attention to the role of policy makers, as well as the involvement of citizens, particularly young people and children in Europe, to effectively address these changes, tackle the threats, and bring out the great potential of the Digital Decade we currently live in.
 Official Journal of the European Union, Article 24 – The rights of the child, Charter of Fundamental Rights of the European Union (2012/C 326/02). Available at: Charter of Fundamental Rights of the European Union (europa.eu) [04.06.2022].
 United Nations, Committee on the Rights of the Child – General comment N.º 25 (2021) on children’s rights in relation to the digital environment, CRC/C/GC/25, 2 March 2021. Available at: UN_CRC_General comment N.º 25 (2021) on children’s rights in relation to the digital environment_En.pdf (right-to-education.org) [01.06.2022].
 European Commission, European Declaration on Digital Rights and Principles for the Digital Decade, COM(2022) 28 final, Brussels, 26.1.2022. Available at: Declaration on European Digital Rights and Principles | Shaping Europe’s digital future (europa.eu) [02.06.2022].
 European Commission, A Digital Decade for children and youth: the new European strategy for a better internet for kids (BIK+), COM(2022) 212 final, Brussels, 11.5.2022. Available at: EUR-Lex – 52022DC0212 – EN – EUR-Lex (europa.eu) [03.06.2022].
 European Commission, Proposal for a Regulation of the European Parliament and of the Council on a Single Market For Digital Services (Digital Services Act) and amending Directive 2000/31/EC, COM(2020) 825 final, 2020/0361(COD), Brussels, 15.12.2020. Available at: EUR-Lex – 52020PC0825 – EN – EUR-Lex (europa.eu) [01.06.2022].
 European Commission, Press release – Digital Services Act: Commission welcomes political agreement on rules ensuring a safe and accountable online environment, Brussels, 23 April 2022. Available at: DSA: Commission welcomes political agreement (europa.eu) [03.06.2022].
 European Commission, How to make Europe’s Digital Decade fit for children and young people? A report from the consultation with children and young people, #DigitalDecade4YOUth consultations, European Union, 2022. Available at: European strategy for a better Internet for kids (BIK+) – Report on the DigitalDecade4YOUth consultation | Shaping Europe’s digital future (europa.eu) [02.06.2022].
 George Bouchagiar e Maria Bottis, Defending children’s rights minding children’s privacy and development in light of the general data protection regulation, In R. Brito & P. Dias (Coords.), Crianças, famílias e tecnologias. Que desafios? Que caminhos?. (pp. 29-39). Lisboa: Centro Interdisciplinar de Estudos Educacionais. ISBN 978-989-8912-09-1, 2019, p. 34. Available at: Defending children’s rightsminding children’s privacy anddevelopment in light of the generaldata protection regulatione-book.pdf (ipl.pt) [05.06.2022].
 Mariya Stoilova, Sonia Livingstone and Rishita Nandagiri, Children’s data and privacy online: Growing up in a digital age. An evidence review. London: London School of Economics and Political Science, 2019, p. 6. Available at: Children’s data and privacy online: growing up in a digital age: an evidence review – LSE Research Online [02.06.2022].
 For more on the subject, see Simone Van Der Hof, I Agree… Or Do I? A Rights-Based Analysis of the Law on Children’s Consent in the Digital World, Wisconsin International Law Journal, Volume 24, Issue 2, 2017. Available at: I Agree… Or Do I? A Rights-Based Analysis of the Law on Children’s Consent in the Digital World | Scholarly Publications (universiteitleiden.nl) [01.06.2022].
 European Commission, How to make Europe’s Digital Decade fit for children and young people? A report from the consultation with children and young people, #DigitalDecade4YOUth consultations, European Union, 2022, p. 9. Available at: European strategy for a better Internet for kids (BIK+) – Report on the DigitalDecade4YOUth consultation | Shaping Europe’s digital future (europa.eu) [02.06.2022].
 Idem, p. 10.
 As written in the European Commission’s Press Release of June 2021 on eID proposal: “European Digital Identity – Citizens will be able to prove their identity and share electronic documents from their European Digital Identity wallets with the click of a button on their phone. They will be able to access online services with their national digital identification, which will be recognised throughout Europe. Very large platforms will be required to accept the use of European Digital Identity wallets upon request of the user, for example to prove their age. Use of the European Digital Identity wallet will always be at the choice of the user (…)”. Available at: Commission proposes a trusted and secure Digital Identity (europa.eu) [04.06.2022].
 European Commission, A Digital Decade for children and youth: the new European strategy for a better internet for kids (BIK+), COM(2022) 212 final, Brussels, 11.5.2022, pp. 11-15 (PDF version). Available at: EUR-Lex – 52022DC0212 – EN – EUR-Lex (europa.eu) [03.06.2022].
Picture credits: FeeLona.