- No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.
- The child has the right to the protection of the law against such interference or attacks.
-UN Convention on the Rights of the Child
Overview of Article 16
Article 16 proclaims the child’s right to privacy in the exact terms of the International Covenant on Civil and Political Rights, but it innovates by juxtaposing this right to a new right in relation to the child’s right to information in Article 17.[1] Protecting Privacy in an information age requires a principled regulation of a child’s right to access information that can promote their social, spiritual and moral development. The nexus between Articles 16 and 17 is therefore an important one. Children’s privacy is particularly at risk within their parental home, within alternative care settings and within institutional settings including schools and hospitals [1, 2], but as with adults, children’s privacy is increasingly at risk online [3]. Article 16 proclaims the child’s right to privacy, including informational privacy, personal and spatial privacy, and the right to solitude[2];it also proclaims a right to protection against arbitrary or unlawful interference with the child’s family, home or correspondence[3]; and a right to protect their honour and reputation.[4] Finally, the article also requires State Parties to protect children legally from such interference or attacks. The Committee on the Rights of the Child has pointed out the significant rise in range and incidence of privacy concerns related to the increase in mass collection of personal data and the multiplication of platforms for sharing of such data [4]. While the text of the Convention draws inspiration from the American Bill of Rights and legal language grounded upon tort remedies related to privacy violations that have existed for centuries, the provision is also supple enough to defend children’s privacy against the emergent threats of State surveillance and exploitative commerce.
The Convention balances the parent’s role in nurturing and guiding the child in the exercise of their rights, in a manner consistent with the child’s evolving capacities, against the child’s autonomy and liberty interests, safeguarded in Article 6, 12 and 13 to 17. The right to life, survival and development is the kernel of the child’s liberty interests representing the child’s development into an autonomous human being and protecting the child’s privacy is a critical factor in developing the child’s autonomy, freedom and agency.
[1] For a discussion in relation to the links between the right to privacy and the right to information more generally see: Banisar, D. (2011). The Right to Information and Privacy: Balancing Rights and Managing Conflicts (pp.56).Washington, D.C: The World Bank Institute.
[2] Prosser, W.L. (1960) defined privacy as encompassing four basic rights of 1) a right to solitude; 2) protection from public disclosure of embarrassing facts; 3) protection from publicity placing one in a false light; and 4) protection from appropriation of one’s name or likeness. Prosser, W.L. (1960). Privacy. California Law Review, 48(3), 383-423. DOI https://doi.org/10.15779/Z383J3C. Westin, A.F. (1968) who defined the four states of privacy as solitude, intimacy, anonymity and reserve. Westin, A.F. (1968). Privacy and Freedom. Washington and Lee Law Review, 25(1), Rev.166, p.487.
[3] Prosser’s famous definition of Privacy as encompassing four basic rights of 1) a right to solitude; 2) protection from public disclosure of embarrassing facts; 3) protection from publicity placing one in a false light; and 4) protection from appropriation of one’s name or likeness. Prosser, W.L. (1960). Privacy. California Law Review, 48(3), and Westin, A.F. (1968). Privacy and Freedom. Washington and Lee Law Review, 25(1), who defined the four states of privacy as solitude, intimacy, anonymity and reserve.
[4] Libel and slander laws must protect children as well and the Committee has expressed concern not merely about the application of these laws in individual cases but also to the treatment of children in general by the media: United Nations Office of the High Commissioner for Human Rights. (1996). CRC report of the 1996 Day of General Discussion: “The Child and the Media” (CRC/C/15/Add.65), Annex IX.
Core attributes of Article 16
The core attributes of Article 16 are:
- Interference with privacy
- Interference with family, home or correspondence
- Unlawful attacks upon honour and reputation
- Protection of the law against unlawful interference or attacks
Each of these attributes can be measured in terms of structural or process implementation or in terms of outcomes achieved through implementation as outlined in the table below. Some indicators, for instance the structural ones, may be common to all attributes. Others are common to two or more attributes, while some indicators may be relevant to one attribute only. An attempt has been made to balance the use of objective and subjective data indicators as well as qualitative and quantitative ones.
What did children say?
These are some ideas that children from around the world shared with us during the Global Child Rights Dialogue (GCRD) project:
Relevant provisions within the SDGs
No relevant SDG provisions have been identified for this article.
Potential sources of data for users of the indicators sets
- Children’s rights commissioners’ reports
- Data privacy principles
- Government departments, universities and other training institutions
- Impact evaluations of trainings for professionals
- National child wellbeing surveys
- National crime statistics bureaus
- National Privacy Commissioners Offices
- Nationally accredited professional training programmes for all disciplines specified
- Other children’s rights organisations’ reports (e.g. UNICEF)
- Primary research by national human rights institutions for children
- Primary research by universities and NGOs
- Qualitative research with children on their knowledge of and experience in the exercise of their rights
- Surveys of parents on knowledge of their responsibilities as parents and the right of the child
References used for the overview
- Regarding violations of a child’s privacy at home and for the philosophical underpinnings of Article 16 decision-makers refer to: Feinberg, J. (1980). The Child’s Right to an Open Future. In W. Aiken and H. LaFollette (eds), Whose Child? Children’s Rights, Parental Authority, and State Power (pp.124–153). Totowa, United States of America: Rowman & Littlefield.
- In reference to child privacy in institutional settings see: Joyce, N. (2011). An Analysis of the Extent of the Juvenile Offender’s Right to Privacy: Is the Child’s Right to Privacy Circumvented by Public Interest? European Journal of Crime, Criminal Law, and Criminal Justice, 19(3), 113-124. https://doi.org/10.1163/157181711X566335
- Lansdown, G. et al. (2011). Child Safety Online: Global Challenges and Strategies (ISBN: 978-88-6522-004-7). The Innocenti Research Centre, Florence, Italy. Retrieved from United Nations Children’s Fund (UNICEF) website: https://www.unicef-irc.org/publications/pdf/ict_eng.pdf
- United Nations Office of High Commissioner of Human Rights. (2014). CRC Report of the 2014 Day of General Discussion “Digital Media and Children’s Rights”. Retrieved from http://www.ohchr.org/EN/HRBodies/CRC/Pages/Discussion2014.aspx
References used to create indicators
- D’hondt, S. & Péters, C. (2016). National indicators of the rights of the child: Make them count. Retrieved from the Belgian National Child Rights Commission website: https://ncrk-cnde.be/en/projects/nouvelle-traduction-20-indicateurs-nationaux-droits-de-l-enfant/
- Fundamental Rights Agency – European Union Agency For Fundamental Rights. (2010). Developing indicators for the protection, respect and promotion of the rights of the child in the European Union (Conference Edition). Retrieved from https://fra.europa.eu/en/publication/2012/developing-indicators-protection-respect-and-promotion-rights-child-european-union
- Interpol. (n.d.). International child sexual exploitation (ICSE) database. Retrieved from https://www.interpol.int/en/How-we-work/Databases/International-Child-Sexual-Exploitation-database
- Office of the Child and Youth Advocate. (2017). New Brunswick Child Rights Indicators Framework (pp.81-108). State of the Child Report. Special focus: Youth criminal justice (ISBN: 978-1-4605-1915-8). Retrieved from https://static1.squarespace.com/static/60340d12be1db058065cdc10/t/606b4ec8f55d2908d1c8a83e/1617645262198/State_of_the_Child_Report_2017.compressed.pdf
- Privacy International. (2019). Annual State of Privacy Reports. Retrieved from https://privacyinternational.org/type-resource/state-privacy
- United Nations Children’s Fund (UNICEF). (2007). Implementation handbook for the Convention on the Rights of the Child (Fully rev. 3rd ed.). Geneva, Switzerland: UNICEF.
- United Nations Office of High Commissioner of Human Rights (OHCHR). (2012). Human Rights Indicators: A Guide to Measurement and Implementation (HR/PUB/12/5). Retrieved from http://www.ohchr.org/Documents/Publications/Human_rights_indicators_en.pdf
- United Nations Office of the High Commissioner of Human Rights. (n.d.). UN Special Rapporteur on sale of children, child prostitution, and child pornography website, annual and country reports. Available from https://www.ohchr.org/EN/Issues/Children/Pages/ChildrenIndex.aspx
Glossary/key words
Biological data
Biological data are data or measurements collected from biological sources which are often stored or exchanged in a digital form. For the present purposes it would include both tissue samples and their images or sequencing digitally stored, for instance blood samples, hair samples, saliva, urine or tissue samples, as well as DNA sequences, MRI results, retina scans, voice prints, palm prints, finger prints, gait analysis, or facial recognition analyses.
Cyberbullying
The World Health Organization recognises bullying behaviour as ”the intentional use of physical or psychiological force or power, threatening or actual, against oneself, another person, or against a group or community that either results in or has a high likelihood of resulting in injury, death, psychilogical harm, mal-development, or deprivation”. Bullying is an action which is taken against another person to cause harm, repeated in various forms over time. Parents and children do not usually have the same perception of the scale of this problem. Bullying can take many forms; physical bullying, verbal bullying, relational aggression, sexual bullying, prejudicial bullying, extorsion and cyberbullying. Cyberbullying is bullying via the internet or mobile phone, involving offensive or malicious messages, e-mails, chat room or message board comments, or, even more extreme, websites built with harmful intent towards an individual or certain groups of people. Cyberbullies also use mobile phones to take embarrassing pictures of others or send hurtful SMS or MMS messages. All forms of online bullying have much greater impact than normal bullying since authors are strengthened by a feeling of anonymity and victims have no place to hide from the bully – they can be victims night and day, virtually wherever they are (Council of Europe, 2017).
Data mining
Data mining technologies create detailed demographic and behavioural profiles of children and young people online. This information is then used to document contemporary trends in youth markets. Data mining is the process of gathering “aggregate” rather than “personal” information. This aggregate data is a highly useful and sought-after commodity for marketers, who compile extensive databases containing information on users’ online browsing habits and consumer preferences. There is concern over data mining practices that constitute a threat to children’s emerging rights online.
Grooming
Grooming is when someone builds a relationship, trust and emotional connection with a child or young person so they can manipulate, exploit and abuse them. Children and young people who are groomed can be sexually abused, exploited or trafficked. Anybody can be a groomer, no matter their age, gender or race. Grooming can take place over a short or long period of time – from weeks to years. Groomers may also build a relationship with the young person’s family or friends to make them seem trustworthy or authoritative (National Society for the Prevention of Cruelty to Children, 2019).
Informational privacy
Children’s informational privacy means privacy relating to personal information belonging to them or about them. Children’s communications privacy is threatened where their posts, chats, messages or calls are intercepted by governments or other actors, and children’s informational privacy can be put at risk when children’s personal data are collected, stored or processed whether in school records, health records, other public records, financial records, family photo albums, or registration information or material they produced as members of clubs, camps or other associations (UNICEF, 2018).
Right to be forgotten
The right to be forgotten appears in Recitals 65 and 66 and in Article 17 of the GDPR. It states, “The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay” if one of a number of conditions applies.
The right to be forgotten dovetails with people’s right to access their personal information in GDRP Article 15. The right to control one’s data is meaningless if people cannot take action when they no longer consent to processing, when there are significant errors within the data, or if they believe information is being stored unnecessarily. In these cases, an individual can request that the data be erased (European Union, n.d.).
Targeted marketing
Targeted marketing identifies an audience likely to buy services or products and promotes those services or products to that audience. Once these key groups are recognized, companies develop marketing campaigns and specific products for those preferred market segments.
Children and adolescents are recognized as valuable audience as they make their own purchases, influence family decisions about what to buy, and promise a potential lifetime of brand loyalty. While advertising and marketing can serve a useful pur-pose for children like socializing them as consumers, inform them about products, and help them carve out unique identities as they reach adulthood. Concerns arise about the exposure. Some of the most pressing concerns are as follows: whether young people represent a vulnerable audience in need of protection; how marketers are reaching children in online and social networking environments; what parents, practitioners, and policy makers can do to help children contend with these messages; and what the marketing industry can teach various stakeholders about encouraging protective behaviors in young people. Moreover, there are issues related to marketing and young people that can have serious implications, and they deserve careful research attention because there are both short- and long-term negative consequences connected with exposure to marketing messages for products that are not healthy for children and the idealized images and messages within the advertising that youth see (Marketing Schools, 2012; Lapierre et al, 2017).
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