This code came into force on 2 September 2020, with a 12 month transition period. Organisations should conform by 2 September 2021.
The best interests of the child should be a primary consideration when you design and develop online services likely to be accessed by a child.
What do you mean by ‘the best interests of the child’?
The concept of the best interests of the child comes from Article 3 of the United Nations Convention on the Rights of the Child (UNCRC):
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
The UNCRC incorporates provisions aimed at supporting the child’s needs for safety, health, wellbeing, family relationships, physical, psychological and emotional development, identity, freedom of expression, privacy and agency to form their own views and have them heard. Put simply, the best interests of the child are whatever is best for that individual child.
The UNCRC expressly recognises the role of parents and carers (including extended family, guardians and others with legal responsibility) in protecting and promoting the best interests of the child.
It also recognises the child’s right to privacy and freedom from economic exploitation. The importance of access to information, association with others, and play in supporting the child’s development. And the child’s right, in line with their evolving capacities, to have a voice in matters that affect them.
The UNCRC provides a framework which balances a number of different interests and concerns, with the intention of providing whatever is best for each individual child.
The placing of the best interests of the child as a ‘primary consideration’ recognises that the best interests of the child have to be balanced against other interests. For example the best interests of two individual children might be in conflict, or acting solely in the best interests of one child might prejudice the rights of others. It is unlikely however that the commercial interests of an organisation will outweigh a child’s right to privacy.
Why is this important?
This is important because the Information Commissioner is required to have regard to the United Kingdom’s obligations under the UNCRC in drafting this code.
It is also important because it provides a framework to help you understand the needs of children and the rights that you have to take into account when designing online services.
Article 5(1)(a) of the GDPR says personal data shall be:
“processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness and transparency)”
And recital 38 to the GDPR says:
“Children merit specific protection with regard to their personal data, as they may be less aware of the risks, consequences and safeguards concerned and their rights in relation to the processing…”
If you consider the best interests of child users in all aspects of your design of online services, then you should be well placed to comply with the ‘lawfulness, fairness and transparency’ principle, and to take proper account of Recital 38.
The principle of ‘the best interests of the child’ is therefore both something that you specifically need to consider when designing your online service, and a theme that runs throughout the provisions of this code.
How can we make sure that we meet this standard?
Consider and support the rights of children
In order to implement this standard you need to consider the needs of child users and work out how you can best support those needs in the design of your online service, when you process their personal data. In doing this you should take into account the age of the user. You may need to use evidence and advice from expert third parties to help you do this.
In particular you should consider how, in your use of personal data, you can:
- keep them safe from exploitation risks, including the risks of commercial or sexual exploitation and sexual abuse;
- protect and support their health and wellbeing;
- protect and support their physical, psychological and emotional development;
- protect and support their need to develop their own views and identity;
- protect and support their right to freedom of association and play;
- support the needs of children with disabilities in line with your obligations under the relevant equality legislation for England, Scotland, Wales and Northern Ireland;
- recognise the role of parents in protecting and promoting the best interests of the child and support them in this task; and
- recognise the evolving capacity of the child to form their own view, and give due weight to that view.
Taking account of the best interests of the child does not mean that you cannot pursue your own commercial or other interests. Your commercial interests may not be incompatible with the best interests of the child, but you need to account for the best interests of the child as a primary consideration where any conflict arises.
Further reading outside this code