Why We May End Up Not Taking Children's Rights Seriously in Data Protection Law.

Abstract

The Internet and new communication technologies are transforming children’s lives irrevocably. Children are now becoming visible actors in the digital economy and assuming new roles and competences. Recent data protection reform proposals, which vest children with the responsibility for managing their personal data has yet to spark any critical consideration of whether underlying ideological and economic drivers are in the child’s best interests. Policymakers regard the provision made in giving children autonomy over personal information as empowering them as individuals, consumers and prospective innovators. Data protection principles and innovation opportunities from mining children’s personal data unsurprisingly link the virtues of autonomy with increased efficiencies in meeting consumer choice and demands. This should not come as too much of a surprise. More surprising perhaps is the uncritical assent to the emerging model of childhood that mirrors expectations and interests of adults and the digital economy. Little attention, as a consequence, has been directed to the question of what it means for data protection law and industry to take into account children’s rights in a meaningful way. This article contributes to the critical scholarship of data privacy and children’s rights. It reframes existing data protection policy and legal narratives on information self-determination in three steps: from an underlying logic of consent to methods for collection and use; from privacy to the commodification of spaces inhabited by children; from ‘empowerment’ to the complex dimension of children’s constitutional rights to data protection and privacy. One challenge undertaken in this study is to explore whether compliance with the best interests principle may in fact require new models of governance to ensure that both data protection laws and industry practice cater for children. By recasting privacy and policy debates on children’s rights to self-determination of their personal data, the article fills a gap in current scholarship and policy debates by giving critical consideration to the following question: how can we ensure that policy decisions in data protection deployed for political, economic and ideological reasons enhance a child’s best interests?

Keywords: law, children, data protection, privacy, social networking