Background

The rights of the child are founded in the United Nations Convention of the Rights of the Child. These rights are the basis for all EU legislation that is relevant for children, such as the Lisbon Treaty and the Charter of Fundamental Rights of the European Union. Accompanying the rights of the child in the legislation are dedicated protection mechanisms: for instance the need for the protection of the child from injurious information and the need for age-dependent parental direction.

The online domain is an ever more important domain for children. With regard to the online domain the rights of the child are upheld as well as the need for protection of the child. The General Data Protection Regulation (GDPR) for instance states (in Recital 38): “Children merit specific protection with regard to their personal data, as they may be less aware of the risks, consequences and safeguards concerned and their rights in relation to the processing of personal data. Such specific protection should, in particular, apply to the use of personal data of children for the purposes of marketing or creating personality or user profiles and the collection of personal data with regard to children when using services offered directly to a child.” The GDPR (art. 8) empowers parental responsibility regarding data protection. It specifies the need for consent to be given or authorised by the holder of parental responsibility over the child where the child is below the age of 16 years (or less to a minimum of 13 in case a Member State decides so).

Notwithstanding the existing legislation, the implementation of online child rights and protection mechanisms is weak. While the GDPR has provoked a near general implementation of region checks for Internet users, reliable age-checks are only slowly and unsystematically emerging while reliable consent mechanisms for the holders of parental responsibility are wanting. Without reliable online age-checks it is impossible to identify under aged Internet users in order to guarantee their rights as well as offer them effective protection. Without reliable consent mechanisms it is impossible to respect the rights and duties of the holders of parental responsibility to provide direction to the child in the exercise of the child’s rights in a manner consistent with the child’s evolving capacities.