Best interests of children must be paramount.

March 5, 2024

Best interests of children must be paramount.

To date, Australia’s online safety regime has not required industry to make the best interests of children paramount when designing or offering services used by children.

The Federal Government has recently proposed that a revised BOSE (Basic Online Safety Expectations) Determination include an “additional” expectation that services should consider “the best interests of the child” throughout the development and implementation phases of an online service.

So, finally will due weight be given to safety by design principles? Will it finally be recognised that techniques such as the use of persuasive techniques that keep children glued to screens (while their privacy is invaded, and personal details harvested and sold to advertisers) are unfair to children?

The Government’s proposal was part of a discussion paper responded to recently by community and industry groups.

And the Online Safety Act itself will be reviewed in the first half of 2024. (See World News – Feb 2024 small screen issue).

CMA took up the issue of “the best interests of the child” in its recent submission to the review.

CMA wrote:

As might be expected, CMA has paid particular attention to the introduction of the best interests of the child, which we applaud as a positive development for young users. However, as already stated, we have concerns about their status as an ‘additional’ consideration. … it is not asking too much of industry simply to ensure that children’s best interests are ‘a primary consideration’. Requiring providers only to ‘take reasonable steps’ in that direction amounts to a very weak regulation, that in practice will have next to no impact on children’s lives.

Further, the CMA submission argued that review of the National Classification Scheme was an essential consideration in the whole process:

If the best interests of children are to become a primary consideration in online safety, then the regime should link to all National Classification Scheme (NCS) film categories, not just RC, X18+ and R18+. Lower classifications also aim, however imperfectly, to protect children from age-inappropriate content, and there is no reason in principle to limit the BOSE to higher-end material. As with safety by design and related matters, it may be too late in this process to introduce such a significant change, but CMA urges the Department to commence, as soon as possible, a process towards determining the best way of using the full gamut of the NCS. (Ideally such a process would be coordinated with one for reforming the NCS to make it evidence- and age-based.)

Children’s online privacy is another area where the best interests of children need to be foremost.  See the Reset Australia paper on this topic.

The Convention on the Rights of the Child obligates national governments, including Australia’s, to consistently prioritise actions in children’s best interests. It states:

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 best interests principle is fundamental for interpreting and implementing all other rights.

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