Each year on January 28th we celebrate Data Protection Day (or Data Privacy Day outside Europe). This is an important occasion for all of us to stop and reflect upon the significant value of protecting our privacy and personal data. It offers us the opportunity to highlight not only the successes but also challenges that we face in protecting these fundamental rights, of which the enjoyment and fulfilment have become increasingly challenged.
The right to data privacy is fundamental to ensure children’s safety as they navigate the digital world. However, a balance must be struck between the rights of privacy and the protection of children.
The concept of an individual’s privacy can be argued to be as old as civilisation itself. The right to privacy is a fundamental right safeguarded by international human rights law. Due to the widespread consensus on its fundamental nature worldwide, the right to privacy can be considered to pertain to customary international law. In fact, privacy, and the protection of personal data with which it significantly overlaps, are essential building blocks of any democratic society. However, with the opportunities offered by technology to share, collect and store information and data with such ease, one’s ability to choose to remain anonymous and protect one’s privacy has become nearly impossible to realise in practice.
Child Rights in Digital Environments
This development poses a particular threat for children, who are today born into a highly digitalized society, and with their personal data being extensively collected and stored by various stakeholders starting at the moment of their birth. Children have the same rights as adults for protecting their privacy and personal data. It has, however, become painfully evident that these fundamental rights are not the only ones being challenged by technology. Technology has also led to a significant and exponential increase in the sexual abuse and exploitation of children online, and an explosive increase in the amount of child sexual abuse material (CSAM) being produced and distributed, grossly violating the rights of the child, and with adverse impacts possibly lasting long into adulthood.
What the fundamental rights to privacy and personal data protection, and children’s right to protection from sexual abuse and exploitation have in common is indeed that they are all increasingly challenged by technology, but that technology also offers important avenues for better protecting them. The key issue is that these technologies significantly interfere with one another, leading to an imbalance between the rights they aim to protect. This has become painfully evident in the EU recently, as the Regulation for a Temporary Derogation to certain provisions of the ePrivacy Directive has left us with a legislative gap for how to balance the rights, and the challenge of appropriately filling it in the short timeframe of three years.
The Need for Multisectoral Collaboration
It is absolutely essential that when filling in this existing gap, we work together to find a solution which can respect the essence of all the rights involved, in a proportionate and balanced manner. It is indeed a shame to see how often the discourses regarding these rights often turn to become highly polarized, when, what we need is strong multisectoral collaboration to ensure that we can promote and ensure the fulfilment of all these rights despite but also through technology. It is important to underline that a solution which allows for proactive CSAM detection is also the only way to ensure the privacy of the victims and survivors portrayed in the illegal material.
Ultimately, today is a day to celebrate and recognize the significant steps that have been taken to better protect all of our privacy and personal data. In the EU we are extremely fortunate to have some of the most comprehensive and strong legal frameworks for protecting these fundamental rights. In view of the existing legislative gap however, the EU also has the opportunity to become a true frontrunner in the world, implementing legislation which can ensure both privacy, but also the effective protection of children from sexual exploitation and abuse online.
Matilda Sandvik, LL.M., Specialist Children’s Rights