Challenges With “Best Interests Of The Child” Principle In Data Protection: Notes from Rightscon 2025

Nikhil Pahwaon 7 minute read
7 minute read

“Determining the best interests of the child should not be confused with the task of balancing children’s interests against the desires or views of their parents, nor against the commercial interests of companies”, Sonia Livingstone, Professor of Social Psychology at the London School of Economics and a specialist in children and social media, said at a session on “Upholding Rights in the Digital Age: Unpacking the Best Interests of the Child Principle” at Rightscon 2025 in Taipei, Taiwan.

“That’s a separate balancing process in which a child’s best interests are determined independently of, as it were, put into the real world of commercial pressures. In that regard, that’s why Article 3.1 (of the UN Convention on the Rights of the Child) requires that the best interest of the child will be a primary consideration when deciding policy and regulation in relation to children and other matters,” she added. The Committee on the Rights of the Child, she said, “has specifically argued that the best interest of the child should not be overridden by commercial considerations, or at least there should be a very high bar and a clear and public accountability before that happens.” 

Other points she made:

  • “Best Interests” Should Not Replace Other Fundamental Rights, and should be determined by the state via a rigorous transparent process: “So from a child rights point of view, in most cases, when thinking about children’s rights in a digital environment, it’s not necessary to refer to the best interests concept. We can talk about children’s right to privacy, to safety, to access of information, to protection, and we can work towards realising those rights. Best interest is not a summary term for all of those, and it’s definitely not a substitution for any of those. It’s not a very equal subjective concept, but clearly linked to an established child rights procedure. The Convention (UN Convention on the Rights of the Child) and all its general comments set out the idea of the process of determining the best interest of the child, of which there are 20 pages here to read about how that can be done.

    “But crucially, a best interest determination is only needed when the realisation of several of the child’s rights are in question. And at that point, what General Comment 14 says is we need to get together with the child rights experts, consult with children, recourse to relevant evidence, and a transparent, accountable process of decision making, which allows a determination of the child’s best interests to be done. And that, for the Committee on the Rights of the Child, is the obligation of states, not businesses. And it’s the responsibility of businesses to follow the determination made by the states.”
  • Commercial Stakeholders Manipulate the Concept of Children’s Rights for Their Own Interests: “In digital spaces, there is increasing resistance to using terms like ‘child’ and ‘rights’. This resistance allows commercial stakeholders to selectively emphasise certain rights while ignoring others.

    “We can see ways in which stakeholders, especially commercial stakeholders, use the idea of class interest to legitimise a kind of cherry-picking. They get to pick and choose which rights they’re going to highlight and which ones they won’t—protection maybe, privacy not. Invariably, they highlight only those aspects that suit their commercial interests, and position ‘best interests’ as being restrictive of children’s rights.

    “For example, they talk about best interests somehow at the cost of children’s rights to expression, participation, and information, rather than recognising it is precisely a concept designed to recognise the holistic approach of children’s rights.

    “We see ways in which businesses proclaim themselves as arbiters of children’s best interests, but often do so in ways that contradict the UN Convention on the Rights of the Child (CRC). And we see very little consultation with children about their views even though the best interests absolutely includes children’s views.”
  • Legal Challenges Are Weaponising the Concept of Best Interests to Undermine Child Protection Laws: “Legal teams appear to be framing the best interest standard as legally ambiguous and financially risky to justify non-compliance with child protection laws.

    “We got even more concerned when we saw the weaponisation of the concept of best interests,” Livingstone stated. She cited NetChoice, “an association of all the Silicon Valley big tech companies who are suing the attorneys general across various states, beginning in California, where they have blocked the California Age Appropriate Design Code Act.”

    “So the concept of the best interest of the child is now finding itself in a wholly new debate, I will say weaponised by lawyers seeking to push back on tech regulation, where it gets claimed to be vague, subjective, problematic, dangerous for companies who, if they then begin to act according to it, risk very considerable financial costs for getting it wrong,” she added.
  • Meta’s Best Interests Framework Shifts Responsibility Away from Platforms: Meta’s framework, she suggested, diverges from international standards by failing to acknowledge platform-related harms and by shifting accountability onto parents instead of companies or regulators. “It has, let’s say, some distance from the wording of the Convention on the Rights of the Child in General Comment 25. So it doesn’t, for example, refer to evidence of harms in relation to the platform. It puts a heavy responsibility on parents rather than on what platforms can do. It doesn’t seem to recognise that there might be some independent determination of children’s best interests, rather than this being in the hands of governments,” Livingstone explains.

Challenges with the application of “best interests”

UNICEF has begun a new project on children’s best interests in the digital environment, because “despite the long history of the Convention on the Rights of the Child (CRC), the debate on children’s best interests in the digital world is still in its early stages. UNICEF intends to consult children on what they think is their best interests, because, it appears, there isn’t a published document or published report of children being consulted solely on their best interests.” 

Steven Vosloo, Digital Foresight and Policy Specialist for UNICEF, highlighted the following key challenges with the application of the best interests principle in the digital environment:

Challenge 1: Best Interests is Applied Collectively in Digital Spaces, Ignoring Individual Needs.

On principle, according to Vosloo, the best interests principle intends to be applied “to the individual child, a collection of children, like children with disabilities, or all children collectively.” However, in a digital environment, “it only gets applied at the collective level, basically. That’s because you sometimes have tens of millions of children using the same platform. This is challenging because children are not a homogenous group. So your evolving capacities are different, your age and stage, your level of digital literacy, of wealth, your location, and also your life context,” for example, because the child could be a migrant or a refugee. “So how do you balance collective approaches with a bunch of individual children using your platform?”

Challenge 2: Balancing Conflicting Rights in Digital Policy-Making

“The second was this point about competing rights or tensions within rights, like protecting children from exposure to harmful content as a policy. But that same policy really needs to uphold their rights to expression and access to information and participation. That’s not to say it’s impossible, but I think we should recognise there are valid tensions here.” There also exist conflicting interests here, “between children themselves and other children, or between groups of children and other children.”

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Challenge 3: The Digital Environment Evolves Too Quickly for Long-Term Best Interests Determination: The general comments of the UN Convention on the Rights of the Child also talk about the “determination of what’s in the child’s best interest, look at the impact of that decision on the short, medium, and long term. With the digital environment, things change quickly. And so it is challenging to make decisions on what’s in their best interest today when we don’t know what turn AI will take a year or two from now, or how interactions or interfaces will change.”

Challenge 4: Parental Controls and Privacy Settings May Not Be Practically Useful: 

“We don’t know,” Vasloo said, “if parental controls are effective.” “We’ve been told (by children) that ‘my parents don’t use it because they’re either illiterate or they can’t navigate the parental control system. And we don’t know if they’re effective. So are they being used? And do they actually help and empower children, and protect them?”

Other key points made during the discussion by participants:

  • Best interests vs Child Rights: “When I speak to businesses about child rights, a lot of them are like, ‘What?’ That’s not for me. But the best interest principle is something very compelling. It’s something that they understand.”
  • Children in restrictive environments turn to the internet as a coping mechanism: “Do you have any links between long-term human rights violations, that’s called brain trauma, and also about the best interest of the kids, and how the internet can be both good or bad for those kids? Because I see a lot of kids just use the internet as a way for evasion, or they cannot get connections.” “And the kids cannot run around, so they move to cyberspace. And that creates their social ways of searching. So if we don’t solve those problems, then we are asking the best interest of the kids. I don’t think that we are creating problems, well, we’re solving problems by creating problems.”
  • “We don’t want the memeification (oversimplification) of child rights, but we do need to be able to spread the ideas and to get those practitioners in the industry.” So what is the key approach a business should take: “Is it ‘don’t use best interest principle, that’s not for you’ or is it ‘use it with caution’?” Essentially, should businesses be discouraged from using the best interests principle, or should they be taught how to apply it responsibly?
  • The confusion the US creates and the challenges of implementation of the CRC: The US hasn’t ratified the UN Convention on the Rights of the Child, and a part of the confusion around this idea is subjective because in the US legal system, the best interest of the child is not a concept that can be used as a tort. The Convention on the Rights of the Child itself is soft law, and only the countries which have signed are bound by it, which makes global implementation complicated.
  • Who is responsible: A rights-based approach places the primary duty on the state, with companies also bearing responsibility for upholding children’s rights, rather than parental responsibility taking precedence.
  • Variations of laws creating confusion: The age-appropriate design code in California is being picked up by other states, and is being tweaked a bit almost every time. For example, in Maryland, where it should say “child rights”, it says “the best interests of the child”, thus “best interests” is becoming a placeholder for rights, and that’s problematic.
  • Children and adults rely on digital spaces: They increasingly rely on digital spaces when they lack access to real-world interactions. This suggests that governments might see digital engagement as a substitute for investing in real-life opportunities for children, leading to potential policy implications on children’s well-being.

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