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Protecting children from the perspective of human rights

Legal framework and basic principles

At international and European level, there are a number of instruments that set out guidelines for the protection of children, especially in the online environment, including: Directive 2011/93 / EU of the European Parliament and of the Council of 13 December 2011 on combating abuse sexual abuse of children, sexual exploitation of children and child pornography and replacing Council Framework Decision 2004/68 / JHA; Articles 6 and 13 of the United Nations Convention on the Rights of the Child; Lanzarote Convention; Istanbul Convention; Human rights guide for internet users; Council of Europe strategy on internet governance; Convention on Cybercrime; Recommendation CM / Rec (2018) 7 of the Committee of Ministers of the Member States on Guidelines for the observance, protection and realization of children’s rights in the digital environment; Strategy for the Rights of the Child (2016-2021).

The digital environment is extremely complex and rapidly evolving and changing children’s lives in many ways, leading to many opportunities (such as education, socialization, expression, play and inclusion), but also significant risks to their well-being and improved rights. human rights (risks of violence, exploitation and abuse and risks to safety and confidentiality).

Every child, as the holder of individual rights, should be able to exercise his or her human rights and fundamental freedoms both online and offline. The rights included in the European Convention on Human Rights apply to all people, including children, and apply in the digital environment.

Children’s rights in the digital environment have been identified as one of the five priority areas to guarantee children’s rights in the Council of Europe’s Strategy on the Rights of the Child (2016-2021). On 4 July 2018, the Committee of Ministers adopted a recommendation on guidelines for the observance, protection and fulfillment of children’s rights in the digital environment [2018 (7)].

In the digital environment there are several principles that need to be considered:

1. the best interests of the child – in all actions concerning children in the digital environment, the best interests of the child are the first thing to be taken into account. This will often require balancing and, where possible, reconciling the child’s right to protection with other rights, in particular the right to freedom of expression and information (for example, internet filters may prevent children from being exposed to harmful content, but may, also interfere with the child’s right to receive information);

2. children’s cognitive ability – stakeholders (state, institutions and authorities, parents, civil society, etc.) should recognize the ever-evolving abilities of children and ensure that policies and practices are adopted to address those needs in relationship with the digital environment;

3. All rights in the digital environment must be granted without discrimination – targeted measures may be needed for children in vulnerable situations, as the digital environment has the potential to increase the vulnerability of these already exposed categories;

4. the right of every child to express his or her opinion and to be heard – children should have the right to express themselves freely, including through information and communication technologies, and their opinions should be given due weight in accordance with with their age and maturity;

5. States have the primary obligation to respect, protect and fulfill the rights of every child in their jurisdiction and must engage all relevant stakeholders in this process (parents, legal guardians, public institutions, education and child protection and care systems, etc.). ).

Restrictions on the child’s right to freedom of expression in the digital environment

Digital restrictions can come in many forms, but the main categories are:

a. Internet filtering or blocking mechanisms (in schools, libraries, etc.);

b. removal of content (images, videos or text) posted by a child on an online service platform;

c. policies or standards regarding hate speech or intellectual property infringements on platforms.

Restrictions must respect international and European human rights conventions and standards and take into account the evolving capacities of children. Two essential cumulative conditions must be met: children must be aware of the restrictions and must also have a remedy available to address the restrictions that are considered illegitimate by them (for example, they must be able to lodge a complaint with regarding the unjustified deletion of a photo, text, video or to effectively challenge the measure).

The digital environment has considerable potential to support the realization of children’s right to freedom of expression, including seeking, receiving and sharing information and ideas from different fields (through social media accounts, blogs, video-vlogging sharing platforms, etc.). .

Combating the risks of exploitation and online sexual abuse of children

Article 25 of Directive 2011/93 / EU of the European Parliament and of the Council of 13 December 2011 on combating child sexual abuse, sexual exploitation of children and child pornography and replacing Council Framework Decision 2004/68 / JHA contains a series of Measures against Internet pages containing or disseminating child pornography

1. Member States shall take the necessary measures to ensure the prompt removal of Internet pages containing or broadcasting child pornography hosted in their territory and to endeavor to obtain the removal of such pages hosted outside their territory.

2. Member States may take measures to block the access of Internet users in their territories to Internet pages containing or broadcasting child pornography. These measures must be put in place through transparent procedures and provide appropriate safeguards, in particular to ensure that the restriction is limited to what is necessary and proportionate and that users are informed of the reasons for the restriction. These guarantees also include the possibility of recourse to a court of law.

However, children should not be subjected to arbitrary or illegal interference with the digital environment. Measures that may restrict children’s right to privacy must be carried out in accordance with the law, pursue a legitimate aim, be necessary in a democratic society and be proportionate to the legitimate aim pursued. Therefore, even if states can take a series of measures to restrict users’ access to certain online content, it will be observed on a case-by-case basis, through careful analysis, whether the restrictions meet the conditions required by law.

The case of ECHR Cengiz and others v. Turkey in 2015 is an excellent example of this. In this case, the European Court of Human Rights ruled unanimously that there was a violation of Article 10 (freedom of expression) of the European Convention on Human Rights. Human Rights. The case was aimed at blocking access to YouTube, a website that allows users to send, view and share videos.

In particular, the Court found that the applicants, all academics from different universities, were prevented from accessing YouTube for a long period of time and that, as active users and given the circumstances of the case, they could legitimately claim that the order The blockade in question affected their right to receive and transmit information and ideas. The Court also noted that YouTube was a single platform that allowed information of specific interest, especially on political and social issues, to be broadcast and citizen journalism to appear.

The Court also found that there is no provision in law to allow national courts to impose a general restraining order on access to the Internet and, in this case, YouTube, because of its content.

However, it cannot be disputed that the internet is an enabling environment that has been increasingly used for the purposes of sexual exploitation and child abuse, for example for trading in child pornography.

The Lanzarote Convention requires states to explicitly criminalize such acts. According to Article 20 of the Lanzarote Convention, the conduct to be criminalized may consist of: the production of child pornography; providing or making available child pornography; distribution or transmission of child pornography; procuring child pornography for oneself or for another person; possession of child pornography; knowingly gaining access, through information and communication technology, to child pornography.

According to Article 23 of the Lanzarote Convention, the intentional proposal, through information and communication technologies, of an adult to meet a child under the age of sexual consent, for the purpose of engaging in sexual activities with the child or to produce pornography, if the proposal it was followed by material facts leading to such a meeting, it will be incriminated and sanctioned in the legislation of each state.

Brief considerations regarding the crimes provided in the Romanian legislation aiming at the protection of children in the digital environment

CHAPTER VIII entitled Crimes against sexual freedom and integrity of the Criminal Code is the legal framework in Romania by which were incriminated and sanctioned a series of conduct with negative impact on children (art. 219: Sexual assault, art. 220: Sex with a minor, Article 221: Sexual corruption of minors).

Especially art. 222 of the Criminal Code: Recruitment of minors for sexual purposes contains an incrimination that arose from the sharp increase in the phenomenon of sexual abuse of minors (regardless of whether the act is subsequently classified as a crime of rape, sexual assault, sexual intercourse with a minor or sexual corruption of minors) as a result of meeting children with adults they have contacted or have been contacted in the digital environment. This crime has no correspondent in the previous Criminal Code precisely because of the phenomenon of novelty. In addition, the introduction of the crime in the Romanian legislation has the reason of fulfilling the obligation assumed by the Lanzarote Convention (art. 23).

According to art. 222 of the Criminal Code: – “The act of the adult to propose to a minor who has not reached the age of 13 to meet, in order to commit an act of those provided in art. 220 or art. 221, including when the proposal was made by means of distance transmission, shall be punished by imprisonment from one month to one year or by a fine. “

Recruiting minors can be done through successive discussions with the minor, making friends with him, often by claiming that the adult is also a minor, attracting the minor in intimate discussions and activities through which the minor is increasingly exposed to materials with sexual content. The minor can also be co-opted into the production of child pornography by sending or capturing compromising photographs of the minor using digital technologies.

Article 222 of the Criminal Code contains, in the structure of the incrimination, the reference to the age of the minor who can meet the criteria to be an injured person, namely the minor who has not reached the age of 13. Thus, we find that, at least from the point of view of criminal law, the age of sexual consent is 13 years in Romania.

Brief considerations on child protection from a GDPR perspective

Preamble 38 of the GDPR states that all children deserve specific protection when their personal data is used for marketing purposes, as they may be less aware of the risks, consequences, safeguards and safeguards involved. Also in preamble no. 38 we are informed that:

“(…) This specific protection should apply in particular to the use of children’s personal data for marketing purposes or to the creation of personality or user profiles and to the collection of personal data concerning children when using the services provided directly. children. ”

Recital 58 of the GDPR provides for additional tasks for operators / empowered persons, also taking into account the specific protection to be provided to children, by imposing the obligation to communicate and provide information in a language accessible to children:

“Since children need specific protection, any information and communication, if the processing is aimed at a child, should be expressed in simple and clear language so that the child can easily understand it.”

According to art. 8 of the GDPR:

“Conditions applicable to the consent of children in connection with information society services:

1. Where Article 6 (1) (a) applies, with regard to the provision of information society services directly to a child, the processing of a child’s personal data shall be lawful if the child has the at least 16 years of age. If the child is under the age of 16, such processing is lawful only if and to the extent that the consent is given or authorized by the holder of parental responsibility over the child. Member States may provide for a lower age by law for these purposes, provided that that lower age is not less than 13 years.

(2) The operator shall make all reasonable efforts to verify in such cases that the holder of parental responsibility has given or authorized consent, taking into account available technologies.

3. Paragraph 1 shall not affect the general law of contracts applicable in the Member States, such as the rules on the validity, termination or effects of a contract relating to a child. “

We note that, from the perspective of GDPR, the age of consent in children is 16 years. If children want to use online services