Whilst almost everyone agrees that children should be protected online, an LSE workshop this week found that the legal basis for child protection was fragmented, sometimes ineffective and in need of a rethink.
Experts from the public sector, industry, law, academia and child protection organisations came together to examine the legal framework surrounding children’s engagement with the Internet. They found that given the evolving and transnational nature of the Internet it can be difficult to apply legally enforceable rules in a way that provides effective protection. But some legal protections are effective. Recent and forthcoming efforts in Internet governance are introducing new legal protections for minors, and longstanding and pre-existing legal doctrines can be adapted to protect children the digital environment.
What’s the Problem?
One challenge in addressing child protection online is knowing exactly what the risks and harms are. Sonia Livingstone, Professor in the Department of Media and Communications at LSE, described the gap between the risks to which children are exposed and the harms that actually result. Many children might be exposed to higher-risk material, such as sexual content, but an EU-wide report indicates that few claim to be harmed by it. According to Livingstone, placing rigorous legal restrictions on those higher-risk activities might therefore be over-protective, undermining children’s online opportunities. Agnes Nairn, Professor of Marketing at EM-Lyon Business School, showed how children’s digital literacy is being challenged by ever more subtle techniques of online marketing, making it difficult for them (or their parents) to know when they are being advertised to or, more subtle still, when their data is being sold to advertisers. Moreover, John Carr, Secretary of Children’s Charities’ Coalition on Internet Safety, commented on online firms’ tendency to settle cases brought against them on behalf of minors, resulting in a lack of judicial determinations that, in consequence, makes it difficult for both the industry and the public to know where the law stands. The LSE seminar confronted this difficulty head-on by analysing child protection law as it applies to several legal fields.
1. Contract Law
Ian Walden, Professor of Information and Communications Law at Queen Mary, University of London, explained that the relationship between a minor and an online service is essentially one based on contract. These contracts sometimes include terms and conditions that are unfair or simply unenforceable. Harms suffered can sometimes be remedied by filing a lawsuit based on a breach of contract. Nonetheless, the harm is often too minimal to justify the cost of litigation. Walden also noted that reform of legal aid in the UK will further reduce opportunities for litigation on behalf of children.
Walden posited that the contractual relationship between minors and online services is really “a legal fiction”, given that UK law provides that children in many circumstances lack the capacity to contract. The seminar participants generally agreed that contracts can be useful in setting the expectations between parties, but that alone has limited value, and there still needs to be a clarification in the law governing the rights and responsibilities in relation to children in the Internet context.
2. Tort Law
Joseph Savirimuthu, Senior Lecturer at Liverpool University’s Law School, demonstrated that longstanding doctrines in tort law are still applicable in the online context. He described the heightened duty of care traditionally owed to children in negligence situations, and by that same reasoning, proportionate duties of care might be owed by online services operating in sectors where children are known to be present.
Despite the availability of tort remedies, seminar participants lamented that a heightened duty of care has not crystallized in practice. It was suggested that legal reforms, such as strict liability rules or class actions, might better encourage service providers to incorporate a heightened duty of care into their business practices.
Uta Kohl, Lecturer at Aberystwyth University, described how the transnational nature of the Internet is non-conducive to legal frameworks confined within national jurisdictions. The solution, Kohl said, is either to (a) make the Internet less transnational; or (b) make laws more transnational. The latter approach, typically branded as “harmonisation”, is most popular. Kohl nevertheless argued that harmonisation is neither feasible nor desirable, given the national differences on cultural issues such as what constitutes good and bad parenting.
4. Data Protection
Orla Lynskey, Lecturer in the Department of Law at LSE, described the role of data protection legislation as it relates to child protection. Proposed EU legislation seeks to strengthen rules governing age verification practices and the use of verifiable consent by parents for services used by children. Seminar participants agreed on the need to enhance online privacy for children, but voiced concerns about rigid rules for verifiable consent. In particular, if verifiable consent is required for web-based systems used to report bullying or harassment, children might be deterred from reporting such harms.
Summing it Up: A Roadmap for Reform?
Child protection advocates face several challenges in seeking progress through legal means. First, the complexity of the law and its many nuances make difficult the application of legal rules to the Internet context. Second, there appear to be several barriers that impede progress, including jurisdictional differences, a lack of strict liability rules, a lack of class action mechanisms, and a siphoning of advocacy funding. The upside is that by outlining the legal bases for child engagement within each area – together among specialists coming from different fields relating to child protection – these potential avenues for reform can be identified. This illuminates the law’s shortcomings and can pinpoint precisely where change is needed.