Age assurance needs to respect children's rights
A variety of age verification methods are required, both in order to protect children and to ensure that they can participate online, a new study funded by the European Commission finds. The article on the study, co-authored by Simone van der Hof, Professor of Law and Digital Technologies at eLaw, was published in the International Journal of Children's Rights.
The study entitled ‘Children’s Rights and Online Age Assurance Systems: The Way Forward’ finds that many current age verification methods – especially self-declaration – provide far too low a level of age assurance to meet legal obligations explicitly or implicitly envisaged in traditional and relatively new legislations such as the Digital Services Act and the UK Online Safety Act 2023.
Age restrictions have existed in some form or another for a long-time now, and affect children’s ability to access content, goods and services under traditional laws (e.g. cinema admission, the sale of alcohol and tobacco and online gambling). The advent of the internet has resulted in several challenges for child protection as well as children’s rights. While the laws that restrict children’s access to inappropriate content, goods and services are essentially intended to protect children, higher levels of protection should not result in children being excluded from digital services that are of value to them.
As the UK Information Commissioner’s Office neatly summarises, 'assurance' is an umbrella term used to describe methods that estimate or verify someone’s age. Researchers found that so far, age assurance measures have often been ineffective in protecting children from online harm, instead risking their privacy and harming their civil rights.
Age assurance measures are often poorly implemented, exposing children to inappropriate content, harmful products and services, and depriving them of the high level of data protection mandated by the GDPR.
A child rights approach requires that children should be consulted on safety and privacy measures and that all measures should be subject to robust evaluation. They identified serious child rights concerns relating to the current age checks, in terms of protection, discrimination, privacy, the right to be heard, other civil rights and freedoms, and remedy.
Age assurance should factor in privacy-by-design and safety-by-design in order to ensure that children can enjoy both age-appropriate digital opportunities and protection.
Children’s Rights and Online Age Assurance Systems: The Way Forward
The study conducted by Sonia Livingstone and Mariya Stoilova from the London School of Economics and Political Science, Abhilash Nair from the University of Exeter, Simone van der Hof from Leiden University and Cansu Caglar from Queen Mary University of London has been published in the International Journal of Children's Rights.
Researchers examined the legal requirements for age assurance in Europe for online content, the online sale of alcohol and tobacco and online gambling. They then assessed compliance by companies and analysed the implications for family life.
They found a lack of clear guidelines from regulators as to how appropriate measures may be implemented in practice, which could leave both service providers and users with a considerable degree of uncertainty. A critical approach should also be taken to the specific age restrictions set by providers. Most represent a business decision to exclude children rather than invest in designing services appropriate for them.
Professor Nair says: 'A comprehensive study that we carried out across all 27 Member States and the UK found that there is a myriad of legislation that require age checks, but without appropriate assurance mechanisms in place many of those laws have not been meaningfully enforced. There is now a renewed interest in age assurance, and it is important that we get it right this time so that age assurance tools can serve as a useful tool to achieve compliance with the laws but at the same time are rights respecting for all, and particularly for children.'
Professor Livingstone adds that digital services can hugely benefit children’s development and should therefore remain accessible to them. 'The threshold for age-based restrictions should be set according to whether, on balance, content, services or products are potentially harmful to children or certain age groups of children, bearing in mind all their rights.'
Professor Van der Hof says: 'Although age assurance is the responsibility of digital service providers, they seem to shift the responsibility from digital service providers to children and parents by expecting them to provide the correct age or date of birth on registering. When children below the minimum age set by providers do use those digital services, they find themselves using services that do not consider their safety specifically and may therefore not be age appropriate.'
The study says children’s right to be heard means that they should be meaningfully involved in the design and development of assurance and consent mechanisms. They should also be able to submit complaints easily when their rights are not observed and receive support with using age assurance methods: 'It is important to get it right. Age assurance should not be mistaken for a silver bullet or a shortcut to making the digital world fit for children. There is a need for a mixed economy of age assurance methods. This could help drive the development of new products and services to create a richer and more diverse digital ecosystem in which children (one in three internet users) are a recognised user group.'
Experts found age assurance is only partially trusted, though this might be improved by setting standards for the efficacy of age assurance and age restrictions, combined with certification schemes as a statutory requirement for providing age-restricted content.
Methods statement
In examining European law, policy and practice regarding age assurance from a child rights perspective, the article draws on and synthesises the insights from three distinct methods.
The first was a study of existing laws and regulations relevant to mandatory age assurance applicable to online content, online gambling and the online sale of alcohol and tobacco in the EU and UK. This involved a two-pronged approach comprising desk-based research and targeted consultations with selected regulators and national experts comprehensively, to compile and analyse the relevant laws and regulations across all 27 EU Member States and the UK that apply to online gambling, the online sale of tobacco and alcohol and the transposition or implementation of the Audiovisual Media Services Directive 2018 (Caglar and Nair, 2021).
The second was a review of methods used in the EU for obtaining parental consent and maintaining children’s rights. This involved a two-pronged approach comprising desk-based research and simulating children's user journey on websites and in apps from multiple jurisdictions (Van der Hof and Ouburg, 2021).
The third was a rapid review of the evidence on age assurance and parental control tools from the perspective of children and families. This followed the Preferred Reporting Items for Systematic Review and Meta-Analysis Protocol (prisma-p) guidelines to search five major multidisciplinary and subject-specific databases, identifying 1,656 results of which 61 remained for analysis after screening against the review criteria (Smirnova et al., 2021).