When, who and how to determine the best interests of the child in the digital environment?

5Rights-LSE Digital Futures for Children centre report sets markers for policy makers.

Children’s right to have their “best interests” prioritised in decisions affecting them is increasingly reflected in tech regulation, including the EU Digital Services Act, the UK and California Age Appropriate Design Codes, the Australian Online Safety Act, and national data protection laws from India to Kenya and Brazil. While in principle a positive development, the concept of “best interests” is often being misunderstood or misused, to the detriment of children’s wellbeing and enjoyment of the full range of their rights in the digital environment.

A new report, Best Interests of the Child in the Digital Environment by the Digital Futures for Children 5Rights and LSE research centre, provides important clarity on when a “best interests” determination is required, and makes clear that it is not in place of the implementation of the full gamut of children’s rights. It also sets out who can make such a determination, and how.

The expert analysis provides an overview of examples of how the concept is commonly manipulated when:

  • “best interests” is separated from, or used to substitute for implementing children’s rights as set out in the UN’s Convention on the Rights of the Child (UNCRC);
  • stakeholders, including companies with clear commercial interests, self-proclaim themselves as arbiters of children’s “best interests”,
  • children’s views are not adequately taken into account;
  • children are treated as a homogenous group, irrespective of their age and capacities;
  • “best interests” is used to legitimise cherry-picking among children’s rights, giving preference to commercial interests;

One example given of a corporate company devising “best interests” is that of Meta, who developed a process “to help us apply the UN’s Convention on the Rights of the Child directly to the products and experiences we build”.

Yet, Meta’s framework does not clearly focus on under 18s (UNCRC Article 1), allocates substantial responsibilities to families, parents and guardians, and fails to allow for independent or authoritative determination of children’s “best interests” when rights conflict. Intended for product development, the framework also fails to reference known harms or the likely long-term impacts of use. In short, Meta does not deliver on children’s rights as determined by the UNCRC and its General comment No. 25 in relation to the digital environment.

The report calls for States to make clear when and how a “best interest” determination is made in the context of regulating technology, recognising that:

  • a “best interest” determination is only necessary for decision-making where there are competing rights and/or the declared interests of other parties may conflict with those of children;
  • such determination is the responsibility of the executive, legislative and judicial branches of government, as well as “public or private social welfare institutions;
  • assessment should be made by a qualified multidisciplinary team, with consultation of children, based on an established suitable process, which includes a child rights impact assessment (CRIA).

The Best interests report calls for governments around the world, in consultation with children, to establish independent bodies and accountable procedures to assess and determine the best interests of the child, that have the authority to prevent tech companies from misinterpreting and misusing the concept.

These bodies – which could be government ministries, children’s commissioners or existing independent regulators or competent national authorities already involved in digital matters – should develop a “best interests” framework, possibly with input from digital providers, according to which children’s rights and best interests can be assessed, whilst considering children’s rights and conflicts between these rights.

“I feel like … our world developed into a place where money is needed, like everyone’s greedy for money… I don’t think the company would stop until it is a major issue, and it is issued by the government to stop. Because they would do anything for people’s entertainment and to get money out of them.”

- Aged 13-14, Essex, UK

While companies cannot determine what is in children’s best interests, they can and must conduct due diligence to ensure outcomes that benefit children and respect their rights. Where conflict surfaces, such as when corporate interests appear to be in conflict with children’s rights, their impact assessments and proposed way forward should be submitted for review by the competent State-appointed authority responsible for assessing and determining the best interests of the child.

Download the report