The United Nations Convention on the Rights of the Child is widely accepted as the cornerstone or foundational document in respect of children’s rights. Every country in the world bar one has signed and ratified the Convention. The highly regrettable exception is the United States. The reasons are complicated, nevertheless the USA has endorsed two of the Convention’s Optional Protocols. However, the fact that it has not fully signed up for the main event illustrates an important point.

Merely adopting the Convention should not be taken as a guarantee that in every signatory country the position of children cannot be improved. By the same token, not signing it cannot be taken to imply children in that country have no rights and are therefore bound to suffer an endless cycle of privations.

The Convention enshires and describes legal rights but it is not written in what is commonly understood to be legal language. It is a political document written in political language, adopted by politicians in a political institution, the United Nations. It sets out eternal values and timeless principles. It does so using high level language. That is because the UN, of all places, recognises we live in a world dominated by nation states with a rich variety of cultures.

The real significance of the Convention is therefore twofold. It establishes standards by which any and every country can or ought to be judged and held accountable both by the international community and by their own citizens. And it acts as an important reference point or guide to national governments, private entities and individuals everywhere, perhaps particularly or above all children themselves.

The Convention is a pre-internet document

The Convention was adopted in 1989 following a gestation period of at least ten years. The authors could not have forseen how children’s lives were about to be significantly impacted by the digital revolution which was just around the corner. Nobody could have. Nobody did.

Today if we were starting from scratch in key places the language we would use would be different. Maybe not dramatically different, but definitely different.

The General Comment rides to the rescue

Any idea of changing the text of the Convention was viewed as impractical. It would just take too long and with the current strains in geo-politics who knows where it might end up anyway. Nevertheless, recognising the importance of updating the context within which the Convention should be read by affected parties, the Committee on the Rights of the Child, the UN’s guardians of the Convention, began a process of writing what we now refer to as “General Comment 25”. Actually its full title is “General comment No. 25 (2021) on children’s rights in relation to the digital environment.”

It took over four years to prepare, consult on and adopt the General Comment. The Committee was helped and advised by some very smart and knowledgable people led by Beeban Kidron of 5Rights , with Sonia Livingstone as the lead author, aided by Gerison Lansdown, Jutta Croll and Amanda Third who, in turn, talked to other very smart and knowledgable people from 28 different countries, involving hundreds of organizations and hundreds of children. The final text was agreed and published in March 2021. 5Rights produced an excellent commentary.

There seems little point in me reciting the content of the General Comment. If you go to the link provided above you will see it is well laid out, presented in highly accessible language and it is not very long. The writers had to conform to the UN’s prescribed standard length for documents of this kind.

The General Comment makes explicit that children’s rights apply in the digital environment every bit as much as they do in the physical world. Adjustments have to be made to accommodate the manifest differences between the two spaces but to the greatest extent possible there should otherwise be alignment. The notion of “internet exceptionalism” is expressly rejected.

In concluding I refer to what I think is one of the most important bits of General Comment 25.

Section I, paragraphs 36-39 draws on earlier platitudinous puffs from elsewhere but sharpens things up in a completely new and brilliant way, neatly reflecting much that appears in the Council of Europe’s “Handbook for policy makers on the rights of the child in the digital environment.” Sonia Livingstone is the common link between the two with, in the latter case, myself and Professor Eva Lievens also lending a hand.

Here is 36-39 in full:

Children’s Rights and the Business Sector

36. States parties should take measures, including through the development, monitoring, implementation and evaluation of legislation, regulations and policies, to ensure compliance by businesses with their obligations to prevent their networks or online services from being used in ways that cause or contribute to violations or abuses of children’s rights, including their rights to privacy and protection, and to provide children, parents and caregivers with prompt and effective remedies. They should also encourage businesses to provide public information and accessible and timely advice to support children’s safe and beneficial digital activities.

37. States parties have a duty to protect children from infringements of their rights by business enterprises, including the right to be protected from all forms of violence in the digital environment. Although businesses may not be directly involved in perpetrating harmful acts, they can cause or contribute to violations of children’s right to freedom from violence, including through the design and operation of digital services. States parties should put in place, monitor and enforce laws and regulations aimed at preventing violations of the right to protection from violence, as well as those aimed at investigating, adjudicating on and redressing violations as they occur in relation to the digital environment.

38. States parties should require the business sector to undertake child rights due diligence, in particular to carry out child rights impact assessments and disclose them to the public, with special consideration given to the differentiated and, at times, severe impacts of the digital environment on children. They should take appropriate steps to prevent, monitor, investigate and punish child rights abuses by businesses.

39. In addition to developing legislation and policies, States parties should require all businesses that affect children’s rights in relation to the digital environment to implement regulatory frameworks, industry codes and terms of services that adhere to the highest standards of ethics, privacy and safety in relation to the design, engineering, development, operation, distribution and marketing of their products and services. That includes businesses that target children, have children as end users or otherwise affect children. They should require such businesses to maintain high standards of transparency and accountability and encourage them to take measures to innovate in the best interests of the child. They should also require the provision of age-appropriate explanations to children, or to parents and caregivers for very young children, of their terms of service.