Executive summary
‘The best interests of the child’ (Article 3(1) of the United Nations Convention on the Rights of the Child, UNCRC) is increasingly mentioned in relation to the provision of digital products and services, often with positive intent to improve the conditions of children’s lives. This report examines the concept in relation to the digital environment, clarifying both what ‘best interests’ is and what it is not.
The ‘best interests of the child’ implies ‘the full and effective enjoyment of rights … and the holistic development of the child’ in both the immediate and longer term.[1] However, in relation to the digital environment, there is evidence that ‘best interests’ is being misunderstood, or even misused. Specifically, in some contexts it is being used as a substitute for the full range of children’s rights, which may not be fully substantiated, or to legitimate a ‘one-size-fits-all’ approach, notwithstanding children’s diverse circumstances or to suggest that any single right trumps all their other rights.
We argue that in most cases it is not necessary to evoke best interests but rather to respect, protect and fulfil the full range of children’s rights in the UNCRC. To put it another way, best interests is not a replacement for other or all of children’s rights, and nor are children’s rights a matter of pick and mix.
In certain situations – such as when several of a child’s rights are in tension, or where third party claims jeopardize children’s rights – a ‘best interests’ determination should be sought. Such a determination informs the standard of expected conduct for digital service providers.
Determining the best interests of a child or children is the obligation of States and cannot be left to technology companies, which, nonetheless, are required to act on such determinations. Making such a determination invokes an established procedure as set out in the UNCRC and its General comments. If necessary, decisions affecting children should be open to challenge through the best interests process.
Determining the best interests of children should not be confused with the task of balancing children’s interests against the desires of their parents or the commercial interests of companies. In each of those balancing considerations best interests will be a primary consideration.
Designing digital technologies that comply with the legal and regulatory frameworks to realize children’s rights as a business norm would be positively transformational of children’s lives, especially where children’s rights in full are put ahead of commercial interests. This would create a digital environment in which children can enjoy all their rights.
The report concludes with the obligation of States regarding children’s best interests in relation to the digital environment. These, in turn, set the framework within which digital service providers, especially businesses, should carefully review their likely impacts on children’s rights to ensure outcomes that benefit children and respect their rights.
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