Noeline Blackwell

In her State of the Union address, European Commission President Ursula von der Leyen provided some insight into a proposal to create a new EU wide law to further protect children’s rights, to be called the EU Kids Act.

With this proposal, the European Commission were responding to the knowledge that children and young people are at immediate risk from certain functions of the digital services they access. It also recognises that the protection provided to children online within the EU has not been enough so far.

Earlier this year, the Commission convened a special panel of children’s experts to consider the harms posed by unsafe online products and recommend what needs to happen to protect children’s safety online. It is welcome to see their advice heeded in the proposal which recognises the need for a tiered and gradual approach that does not exclude young people but rather, ensures age-appropriate responses and experiences.

Under the European rights law, where State authorities know or suspect that abuse is occurring and fail to act, children’s rights have not been respected. Given the evidence now available to them, the EU institutions and Member States have an immediate duty to fully use their powers and bolster national regulators to require ‘safety by design’ to protect children in this digital world they live in.

Implementation & Enforcement

Rather than leaving the main responsibility to children themselves, their parents and caregivers, we finally have our political leaders shifting the focus to what the platforms are doing to ensure their own sites and services are safe. However, the development of any new legislation will have to be careful to ensure that platforms are adapted sufficiently to be truly safe in their design and roll-out.

The proposal, while acknowledging industry responsibility, still maintains a heavy focus on parental controls for children under 15.

A frustrating level of political attention and energy has been sucked up by debates on blanket bans when really we need to look under the hood of how our online world is designed and who is in control; who holds the power. Who are the gatekeepers to supervise the proposed ‘age-gates’? As we read the proposal right now, there does not appear to be the same scrutiny on, or clear age categories for, access to gaming applications and AI chatbots which have been recognised as risky.

We have a real concern too if the EU Commission’s main solution to current harm is to propose new legislation which will likely take months if not years to conclude, and which will require new budget lines and resources. The reality is that we have a significant amount of legislation in place already. It is quite new, which may be why we are only starting to see evidence emerging in recent months. But the structures require large platforms, popular with children, deal with algorithms, harmful recommender systems, access to pornography and extreme violence, and many of the harms mentioned in the proposal.

New laws may advance protection but, in the meantime, we could have a safer online world tomorrow if regulators at the EU institutions and at national level actively and diligently enforced the regulations already in place to hold platforms accountable for their unsafe products and practices that risk destroying all childhoods and are definitely damaging others.

We call on the regulators to fully utilise all the tools already at their disposal to require compliance with the rules by big tech. Otherwise, the EU should consider using their powers to suspend those services altogether until they prove they are safe for consumption.

Access to Justice

We are also concerned that even with the renewed determination suggested by the proposal announced by President von der Leyen, significant barriers still remain for children and their parents, guardians and caregivers to access redress when harm does occur online.

There is no individual complaints procedure for them, while individual or collective complaints to the courts remain an uphill battle in Irish law.

If this new EU Commission proposal strengthens the mechanisms already in the EU’s arsenal, that can only be a positive, as children cannot fight a David versus Goliath fight on their own. With the President boldly stating that it is now the EU making the rules. She must also ensure the EU is enforcing them effectively.

Noeline Blackwell in online safety coordinator at the Children’s Rights Alliance.