The pressure to have the perfect Instagram life, the threat of online bullying, the minefield of sexting, online grooming, vulnerability to advertising, exposure to adult content and addictive technologies, are just some of the issues children are particularly vulnerable to online.
Protecting them is very much a developing area with a lot of work going on in the UK, the EU and beyond, to try and develop appropriate guidance. There are, however, already a number of areas where clear rules do exist in the UK and others where work is underway to develop more. For issues around children's data privacy, see our article.
The Audiovisual Media Services Directive 2018/1808 (AVMS) establishes the regulatory framework for broadcasters and providers of audiovisual content in the EU, and extends the 2010/13/EU AVMS Directive to include video-sharing platforms.
The Directive takes into account that the protection of children must always be balanced with other important values such as freedom of expression and recognises that it cannot work without parental responsibility. Member States have until September 2020 to implement the updated provisions to safeguard children from harmful content.
The UK government is currently consulting on how to implement the Directive.
The Advertising Standards Authority (ASA) is the UK's independent advertising regulator. The Committee of Advertising Practice (CAP) is the ASA's sister organisation responsible for writing the advertising codes. The ASA makes sure that advertisements across the UK media adhere to the advertising rules and the Advertising Codes.
The UK CAP Code sets out rules that apply to adverts and other marketing communications. The UK Code of Broadcast Advertising (BCAP) Code applies to all advertisements on radio and television services licensed by Ofcom, which includes teleshopping, content on self-promotional television channels, television text and interactive TV ads.
CAP has also released new standards which aim to further protect children and young people from irresponsible gambling advertisements. For the purpose of these rules a child is an individual under the age of 16 and a young person is an individual who is 16 or 17.
This new guidance came into effect on 1 April 2019 and applies to marketing communications in all media including online channels such as social media. Guidance is based on previous ASA rulings, but these are not new rules and they do not bind the ASA counsel when they are considering complaints. They do, however, set out the relevant CAP Code and BCAP codes rules in greater detail.
The guidance goes into further detail and provides tangible examples of what will be considered inappropriate at the time of marketing gambling products to children.
The PEGI system of age-rating games is a voluntary code of conduct which all members sign up to and is used by publishers across 31 countries. The DCMS Committee recently published a report on issues arising from immersive and addictive gaming technologies. Among its recommendations were that the government advise PEGI to classify paid-for loot boxes as age-restricted gambling content. The Committee also suggested amending the Video Recordings Act 1984, to apply enforceable age restrictions to games.
There are problems around online age verification (as has become clear with the proposed rules for adult content), but it seems highly likely that the continuing focus on protecting people, and in particular, children, from gambling addiction, will result in more guidance and, potentially, legislation.
The UK intends to bring in age verification for online adult content. Commercial providers of online adult content and pornography where more than a third of the content is pornographic will be required by law to carry out age verification checks on users to ensure that they are 18 years or older.
Websites that fail to implement age verification technology face sanctions including having payment services withdrawn or blocked.
This new approach is the first of its kind in the world, leading the way in internet safety for children and aiming to implement the same protections that exist offline. However, implementation has been delayed due to the government failing to tell EU regulators about the plan. Notification takes at least six months so it remains to be seen when the rules will come in.
The rules have been widely criticised as unworkable and easy to circumvent and may yet change again as technology develops.
It's worth remembering that terms and conditions and policies which apply to children need to be written in a way they can understand.
This can obviously be a challenge. It is hard enough to produce clear terms and conditions which users will actually read online for adults, let alone for children and the added complication is that understanding can vary dramatically depending on which age group is targeted.
In England and Wales, children have capacity to enter into a contract from the age of seven although they can also withdraw from it at any point. This does mean that particular care has to be taken where it is likely that children may engage with terms and conditions.
The UK Science and Technology Committee has concluded that social media companies must be subject to a legal duty of care to help young people's health and wellbeing when accessing their sites, further to report findings from 31 January 2019.
The Committee reports that there is a "standards lottery" among social media companies whose practices differ widely across the industry, and the Committee has advised establishing a regulator to address this. It suggests the regulator would be responsible for:
We are almost certain to see more guidance if not regulation in this arena.
The UK government published a White Paper on online harms in April 2019. It sets out the UK government's plans for a world-leading package of online safety measures to support the thriving digital economy and technological innovation.
This White Paper suggests legislative and non-legislative measures to make businesses more responsible for users' safety online, with a particular focus on promoting and protecting the safety of children (see here for more).
Recommendations made in the White Paper include appointing an independent regulatory body to implement, oversee and enforce a new regulatory framework, establishing appropriate enforcement powers, implementing potential redress mechanisms for online users, and measures to ensure that regulation is targeted and proportionate for the industry.
The proposed regulatory framework is intended to apply to companies which allow users to share or discover user-generated content or interact with each other online. This includes social media companies, public discussion forums, retail sites which allow online product reviews, file sharing sites, instant messaging services, search engines and cloud hosting providers.
Just reading the introduction to the White Paper makes you aware of how complex this space is. The concept of online harms ranges from currently illegal activities to unacceptable content, covering online radicalisation, dissemination of online child sexual abuse, online disinformation, use of social media to promote gang violence and incite violence, and harmful online behaviours including bullying or promotion of content relating to self-harm or suicide.
How you decide what is unacceptable without infringing free speech is one of the most difficult challenges to overcome but whatever the approach, it is certain that more care will need to be taken in all these areas where children are concerned. We expect further developments in this area, both in terms of legislation and guidance.
As with the GDPR, other rules around protecting children online are often enhanced versions of the rules which apply more generally. It is not always clear where the boundaries lie, especially when it comes to user generated content and private communications.
This is very much a non-exhaustive look at some key areas, highlighting that businesses need to follow a patchwork of applicable legislation, rules and guidance, but they always need to consider that the interests of the child are paramount.
If you have any questions on this article please contact us.
PSD2 seeks to improve the existing EU rules for electronic payments taking into account innovations in payment services, such as internet and mobile payments.
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