Protecting children from the perspective of human rights, criminal law and the GDPR in the digital environment

I. Legal framework and basic principles

At international and European level, there are a number of instruments that set out guidelines for the protection of children, especially in the online environment, including: Directive 2011/93 / EU of the European Parliament and of the Council of 13 December 2011 on combating abuse sexual harassment of children, sexual exploitation of children and child pornography and replacing Council Framework Decision 2004/68 / JHA; Articles 6 and 13 of the United Nations Convention on the Rights of the Child; Lanzarote Convention; Istanbul Convention; Human rights guide for internet users; Council of Europe strategy on internet governance; Convention on Cybercrime; Recommendation CM / Rec (2018) 7 of the Committee of Ministers of the Member States on Guidelines for the observance, protection and realization of children's rights in the digital environment; Strategy for the Rights of the Child (2016-2021).

The digital environment is extremely complex and rapidly evolving and changing children's lives in many ways, leading to many opportunities (such as education, socialization, expression, play and inclusion), but also significant risks to their well-being and improved rights. human rights (risks of violence, exploitation and abuse and risks to safety and confidentiality).

Every child, as the holder of individual rights, should be able to exercise his or her human rights and fundamental freedoms both online and offline. The rights included in the European Convention on Human Rights apply to all people, including children, and apply in the digital environment.

Children's rights in the digital environment have been identified as one of the five priority areas for guaranteeing children's rights in the Council of Europe's Strategy on the Rights of the Child (2016-2021). On 4 July 2018, the Committee of Ministers adopted a recommendation on guidelines for the observance, protection and fulfillment of children's rights in the digital environment [2018 (7)].

There are several principles to consider in the digital environment:

1. the best interests of the child - in all actions concerning children in the digital environment, the best interests of the child are the first thing to be taken into account. This will often require balancing and, where possible, reconciling the child's right to protection with other rights, in particular the right to freedom of expression and information (for example, internet filters may prevent children from being exposed to harmful content, but may, also interfere with the child's right to receive information);

2. children's cognitive ability - stakeholders (state, institutions and authorities, parents, civil society, etc.) should recognize the ever-evolving abilities of children and ensure that policies and practices are adopted to address those needs in relationship with the digital environment;

3. All rights in the digital environment must be granted without discrimination - targeted measures may be needed for children in vulnerable situations, as the digital environment has the potential to increase the vulnerability of these already exposed categories;

4. the right of every child to express his or her opinion and to be heard - children should have the right to express themselves freely, including through information and communication technologies, and their opinions should be given due weight in accordance with with their age and maturity;

5. States have a primary obligation to respect, protect and fulfill the rights of every child in their jurisdiction and must engage all relevant stakeholders in this process (parents, legal guardians, public institutions, education and child protection and care systems, etc.). ).

II. Restrictions on the child's right to freedom of expression in the digital environment

 

Digital restrictions can come in many forms, but the main categories are:

a. Internet filtering or blocking mechanisms (in schools, libraries, etc.);

b. removal of content (images, videos or text) posted by a child on an online service platform;

c. policies or standards regarding hate speech or intellectual property infringements on platforms.

 

Restrictions must respect international and European human rights conventions and standards and take into account the evolving capacities of children. Two essential cumulative conditions must be met: children must be aware of the restrictions and must also have a remedy available to address the restrictions that they consider to be illegitimate (