Child’s best interest and informational self-determination: what the GDPR can learn from children’s rights

Abstract

... In an era where the Internet is pervasive, it is relevant to ask whether the legal conditions for safeguarding children’s rights are strong enough to enable children to develop in conditions of dignity and freedom.1 Creating sustainable online privacy should contribute towards permitting children to develop into independent individuals, because in the early stages of life, children are undoubtedly in a dependent position, in the course of time, states have developed a special legal framework which tries not only to protect children but also to foster their development into an independent responsible individual. The most influential instrument in this respect is the United Nations Convention on the Rights of the Child2 (hereinafter ‘the CRC’ or ‘the Convention’). One of the guiding principles3 in this convention is the best interest of the children.4 Whatever measures governments take, they should pay paramount attention to this principle. In recent years, there has been a great increase of attention within the EU on children’s online privacy protection.5 Following the adoption of the Lisbon Treaty (2009), the Charter of the European Union has become a legally binding instrument. Consequently, the EU recognizes the European Convention for the Protection of Human Rights and Fundamental Freedoms as part of its acquis communautaire. This requires the European Commission to assess the impact of new legislative proposals on the fundamental rights of citizens. In the context of this article, this concerns legislative initiatives for the processing of children’s data.6 Children are recognized in Article 24 of the Charter of Fundamental Rights of the EU. This article contains a reference to the CRC and seems to adopt a similar weight to children’s rights and interests. It reads: