Michael McDowell (Independent) | Oireachtas source

I move amendment No. 7:

In page 22, line 32, to delete "13 years" and substitute "16 years".

This is an important subject which needs to be debated and thought about carefully. We are not dealing with the right to have a phone or whatever and a number of issues relating to young people's access to the Internet. We are dealing with the point at which a child aged 13, 14 or 15 is capable of consenting to certain actions on the part of online service providers and the operators of Internet services and sites to process such young people's data. We are dealing with the possibility that we should make it our law that henceforth a child aged 13, 14 or 15 is deemed capable of consenting to the processing of data relating to him or her without any parental or guardian supervision.

The choice provided for us by the GDPR is to opt for 16 being the age at which children can lawfully be presumed capable of giving consent or a lower age down to the age of 13. I do not suggest that choosing one age or the other flies in the face of the regulation because it clearly allows member states a discretion as to what they choose in this respect. We should be practical about ages of 13, 14 or 15 and what these years mean in most children's lives. These are the ages of young adolescence or puberty or the like at which children undergo physical and intellectual transformation of a far-reaching kind. Without over-elaborating on those themes, they are ages at which children need protection and support from whoever is performing the parental or guardianship role in their lives, if it is available to them.

There has been a great deal of naivety about the Internet as a phenomenon in that it was perceived as being all good news and positive, and that the dissemination of information and the capacity of people to interact with others in the media was, by definition, good. However, on the other hand, there has been a growing appreciation, which I will come back to, that the Internet is not all good for everybody and for children, in particular, and that all sorts of issues arise in respect of children and, in particular, protection of children.

I do not know whether the Minister starts with the same proposition as me but I recall Professor John Maurice Kelly lecturing on jurisprudence in UCD. His strong view was that when one talks about rights, there has to be a correlative duty, and he was strong in lectures to his students in the 1970s that to talk about rights divorced from duty to uphold those rights was a splitting of two concepts that were inextricably linked. There was no such thing as a right without a corresponding duty and the question whenever one spoke about rights was to ask oneself whose duty it was to uphold, guarantee and vindicate them.

Under our Constitution, even allowing for the amendment made to give children special recognition, the role of the family is important and, in particular, the role of parents where they are present in a child's life, which is an important aspect of childhood. It is not the case that every family is based on marriage, as the Constitution seems to presume, and many family arrangements are non-marital one way or another. I accept that and I accept that the old idea of the nuclear family of two parents and a number of children in a permanent relationship does not apply to everybody. While many people may think it is the ideal, it is certainly not the only way in which a child can be properly and lovingly brought up.

However, I strongly believe that parents do have not merely rights in respect of their children but also strong duties, and they owe their children the duty of parental care, authority and supervision. That cannot be simply abdicated without consequence for a child.In many respects, children have a right to have their parents' duties delivered to them. When it comes to the interaction of young people with social media and the Internet in general, parents have a very clear responsibility which cannot be avoided. It is simply not good enough to say that children have rights in respect of the Internet. Parents have duties in respect of the Internet, namely, to protect their children, to give them assistance and to uphold their interests concerning how they function online.

In 2017, the Digital Childhoods report highlighted that the Internet was conceived as an environment for adult users, and no design concessions were made for children. As has been pointed out by Professor Barry O'Sullivan and Professor Mary Aiken, the utopian vision of the Internet was that all users would be equal. If all users are equal, then a child user is treated the same as an adult user. That is why, arguably, the Internet by default is not fit for children.

The protection of children's online privacy is a matter of great importance. It is important that many social media platforms require that their users are at least 13 years old. Has that been enforced in a regulatory context? The evidence seems to show that underage usage of mainstream social media platforms is very widespread. The Minister has said that the Government considers the digital age of consent of 13 years to represent an appropriate balancing of children's rights, namely, a child's right to participation in the online environment and a child's right to safety and protection. The Minister said that these rights were enshrined in the UN Convention on the Rights of the Child. I wonder about this, because the UN Convention on the Rights of the Child was ratified in 1989, and came into effect in 1990. This means that it almost entirely predates Internet online services and social media as we know them today. The assertion that a child's right to participation in the online environment is enshrined in the UN Convention on the Rights of the Child needs to be addressed and queried. The point that Professor O'Sullivan and Professor Aiken have made about the UN convention is a good one. They have argued that if the UN Convention on the Rights of the Child is to be brought into play, Article 17 must be considered. That article provides: "States Parties recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health."

The professors also point also to Article 19, which provides: "States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child."

Moreover, they point out that the UN convention provides: "States Parties recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development." It goes on to say: "The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child’s development."

The Children's Rights Alliance and the Irish Society for the Prevention of Cruelty to Children, ISPCC, approach this matter solely from the point of view of children's rights. I contend, however, that we have to look at it in a slightly more nuanced way, and to look at children's rights in the context of the correlative parental duty to provide for their development and protect them from exploitation. In that context, I question whether choosing the lowest possible age of 13 as the digital age of consent, at which children will be deemed capable of agreeing to the use of their personal data on the Internet, is in fact striking the balance in the way that the Minister has gone on the record as saying.

Amazing figures from the United Kingdom show that more and more younger children are going online. Half of children in the UK at the age of three or four are now engaging in some kind of online activity. Some 79% of children between five and seven years old are doing it. Some 94% of children between 8 and 11 years old are participating in online services. In the UK, 99% of children from 12 to 15 years of age are online. There may be social differences between our country and the UK, but I do not think those figures are dramatically different in Ireland. The point that Professor Aiken and Professor O'Sullivan have made is that there is now an emerging body of evidence about the potentially harmful effects of social networking sites on the well-being of children. As they point out, these include sleeplessness, obesity arising from being stuck in front of a screen all day, compulsive use and vulnerability to advertising. In addition to those, kids are suffering from a myriad of downstream consequences, including an inability to concentrate at school, poor grades, anxiety, depression and sometimes even suicidal ideation.

We may ask what we can do about these things. The two professors made another interesting point. They noted that rates of anxiety and depression among young people have increased by 70% over the last 25 years, and that young people say that four of the five most-used social media platforms make their feelings of anxiety worse. The Royal Society for Public Health states that the platforms that are supposed to help young people connect with each other may actually be fuelling a mental health crisis. Without being too alarmist about it, there is no doubt that young people are especially vulnerable to peer pressure, bullying, insidious pressure to conform in some respects and insidious efforts to isolate and demean them. We live in a world where eating disorders are among children are sadly becoming increasingly common. One of the pressures in that regard is the constant bombardment of young people with ideal body types and sizes. Young people see heroines and heroes with particular body images, which make them unhappy with their own bodies and get them into a state of dissatisfaction.This leads to all sorts of psychological pressure on young people. Young people are vulnerable to cyberbullying, sexting and sextortion and so on. In 2017, Europol reported that the number of sextortion offences, which is the forcing or encouraging of young children to provide images of themselves in a sexual context, and webcam blackmailing, has rocketed in recent years. Sometimes, the victims in this regard are as young as seven.

Instant messaging apps can also be used to bully children. The national anti-bullying research and resource centre in Dublin City University has found that new apps and social media platforms are targeting children as young as nine years of age. Children can be very reluctant to tell their parents about the bullying they encounter on social media because they are worried that their Internet access will be taken away from them. Children who are victims of bullying are frequently found to experience low academic performance, depression, anxiety, self-harm, loneliness, isolation and changes in sleeping and eating habits. This is not just an issue of concern for two professors: the teaching profession is becoming increasingly aware of these problems as well. In that context, we are required to consider what is the appropriate digital age of consent. For example, should it be set at 13, as it is in the United Kingdom alongside its special statutory protective measures, which we have not yet put in place, or, should it be set at 16, as it is in France, Germany and the Netherlands?

I do not rubbish anybody else's views but the arguments that have been made by the ISPCC, the Children's Rights Alliance and Geoffrey Shannon and others have been based on the proposition that children have a right to participate in the Internet and that that right should be vindicated and encouraged. The argument that the maturing process in today's digital world involves not treating children as plants in a glasshouse, totally isolated, has some merit. However, I believe that parents, where they are in a position to exercise protective powers over children, are people who should have some input into whether their child is or is not to be accorded the legal status of being capable of agreeing to the processing of his or her data by other bodies on the Internet. We are not only dealing with the physical location of children which exposes them to vulnerability, we are dealing with their preferences, photographs, interests - sport and so on - and a profile in respect of every child who participates on Internet service provider apps and so on. We are dealing with massive data in respect of those children and it is being proposed that we set at 13 the age at which a child can consent to others processing their data in any way the latter consider appropriate. I am of the view that 13 is too young for those types of decisions to be made in cases where children are under the effective supervision and protection of their parents. Put another way, I believe that parents should have a prima facieright to be involved in a decision by children as to whether their child consents to the processing of his or her data for commercial reasons and so on. We are setting the balance wrong by going to the lowest possible age in this regard. We should uphold the concept of childhood and the rights of parents to protect their children and to make responsible decisions for their children up to the age of 16.

There are some who believe parents might use their right to withhold consent unfairly to deprive their children of access to various services but I wonder if many parents would actually do that. Even where parents do withhold consent in respect of young children, surely we should accord a presumption that the parents are making the responsible choice rather than the irresponsible choice in respect of their children. Parents will know how vulnerable their child is and the disorders, weaknesses of psychology and so on from which they suffer. Parents will know if their child is vulnerable to bullying. They are in a better position than any statute to judge their child's maturity.

At present, a person here under the age of 18 cannot buy a scratch card for the national lottery. According to our law, a child is presumed to be incapable of making a mature enough decision to spend a couple of euro on a scratch card. How then can it be right that a child at the age of 13 would be in a position to decide who can use his or her photographs, social media profile and other data, including the child's physical location and online conversation? How can it be right for us to on one hand say that a person under 18 years of age is too young to buy a scratch card because he or she is not mature enough to understand the dangers of gambling and so on, and on the other hand propose to set at 13 the age at which a child is to be permitted to make legally effective decisions about his or her data and profile and accord to third parties the right to process and to commercially exploit those data? That does not add up. I know that there are different points of view on this issue and that my view is, perhaps, the minority point of view, but I believe that it is worthwhile debating this issue. I am not convinced by anything that I have heard thus far, in particular the reference to reliance on the UN Convention on the Rights of the Child, which long predates the Internet. In the days of radio and television only, there was a very limited amount of damage that could be done to children. The dangers and the risks have increased exponentially. There are people who are predating on children and there are also services that are exploiting children's profiles and targeting children with advertising. I think we should set the balance towards the age of 16 rather than 13.