The Malta Independent 6 December 2023, Wednesday
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Future legislation to protect children

Mark Said Sunday, 19 November 2023, 07:12 Last update: about 18 days ago

Safeguarding children’s rights is more important than ever. Measures to tackle the spread of COVID-19 risked having a lasting effect on our children and our future. However, government measures to limit the virus’s spread made it possible for parents to continue working and receive an income; the distance education challenge was successfully overcome; and access to social and healthcare services remained operative. These all somehow affect children. World Children’s Day on November 20 should remind us to step up efforts to protect the rights of all children and to provide them with opportunities to contribute to change.


Currently, children’s rights are protected and granted by the United Nations’ Child Rights Convention, the EU Charter of Fundamental Rights, EU law, and local legislation. There is, however, in the pipeline an eventual churning out of EU legislation as a consequence of the EU strategy on the rights of the child (2021–24). This strategy on children’s rights will provide the framework for EU action to better promote and protect children’s rights. It aims to legislate on the rights of the most vulnerable children, children’s rights in the digital age, the prevention of and fight against violence, and the promotion of child-friendly justice. It will also include recommendations for action by other EU institutions, EU countries, and stakeholders.

Children’s rights in the digital age should undoubtedly have major prominence. The need to recognise the importance of promoting children’s rights in the digital environment cannot be stressed enough. It is unfortunate that digital platforms are designed on the basis that all users should be equal. This means that children are treated as adults online, denied the rights to participation, protection, and provision enshrined within the UNCRC.

In this sense, it will be imperative to shape a child-rights-respecting digital world by identifying the opportunities, risks, and challenges of realising children’s rights in a digital world, strengthening the case for greater action and intervention by the government in meeting its obligations, including the duty to ensure that all actors meet their responsibilities to respect children’s rights in relation to the digital environment, and proposing measures by which it can effectively ensure that actors in the digital environment facilitate, rather than abuse or violate, children’s rights.

To date, digital service providers have few responsibilities to promote the rights of the children and young people who use their services. This is despite the fact that they have a huge influence over children, mediating almost every aspect of their lives. Our digital services legislation is a crucial opportunity to change this. We should ensure that a child rights approach is embedded in our law and that digital service providers are given clear, enforceable duties to protect children.

Even the use and misuse of data has an enormous impact on children’s rights, not just in the digital environment but also in their wider lives. In the digital age, you cannot hope to promote children’s rights without protecting their data. The GDPR states that "children merit specific protection in relation to their data", but neither Europe nor individual member states, including Malta, have taken enough and appropriate steps to specify and enforce the practical implementation of this requirement. Data sits at the heart of the digital services children use every day. From the moment a young person opens an app, plays a game, or loads a website, data begins to be gathered. For all the benefits the digital economy can offer children, we are not currently creating a safe space for them to learn, explore, and play. Children are being ‘datafied," with companies and organisations recording many thousands of data points about them as they grow up. These can range from details about their mood and their friendships to what time they woke up and when they went to bed. Our concerns rank children’s privacy second only to cybersecurity.

Another area where legislation might have to be addressed concerns the property rights of children, which is an understudied area that straddles the development/humanitarian divide. We typically do not think of children as economic actors because of their age; their property rights are future rights not yet realised. For example, one should eventually consider legal changes to better protect children’s assets when guardianship is lost. Unfortunately, there are few international standards relating to the property rights of children. The UNCRC, which is the most widely accepted piece of human rights legislation in history, guarantees children the right to a name, education, culture, and religious freedom, and even encourages the publication of children’s books, but it does not specifically mention the property rights of children. Indeed, it only mentions property insofar as children are not to be discriminated against because of their ownership or lack of ownership of property.

The nature of children’s property, as a future right protected by the guardianship of a parent, means that children’s property rights are under the greatest threat when a parent dies or children are separated from their parents. The loss of a parent or displacement from ‘family’ property severs ties that assure children of future property access. Children are more vulnerable than adults to property losses because they do not have knowledge of their assets or their rights, nor do they have the ability to advocate for their rights against more powerful competitors.

The last century was one that began with children having virtually no rights and ended with children having the most powerful legal instrument that not only recognises but also protects their human rights. In this century, children need systems that are inclusive and driven by them, systems that will enable them to respond to their feelings and needs at any time.


Dr Mark Said is an advocate

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