CHILDREN’S RIGHT TO PRIVACY IN THE DIGITAL AGE: IS THE ECTHR’S CURRENT APPROACH UP TO THE NEW CHALLENGES?*

The multi-layered legal framework concerning children’s right to privacy in the digital age mirrors the complexity of the matter and provides the legal background for the European Court to develop States’ positive obligations under Article 8 ECHR. The overview of the Court’s case law concerning the scope of these positive obligations in case of online threats to children’s right to private life shows that many issues have been addressed. However, several areas still need clarity. The Court’s case law may offer guidance to understand States’ positive obligations vis-à-vis new unaddressed challenges raised, inter alia, by dangerous profiling or over-sharing of children’s information online. In these cases, States may be deemed responsible under Article 8 ECHR for conduct by private persons, such as service providers or parents for abusive use of children’s data. Ultimately, the best interest of the child should be taken into due consideration, possibly overriding other private or public interests. Equally, the right to be forgotten as enshrined in Article 8 ECHR should be interpreted in the light of this primary interest, limiting the undesirable effects of long-lasting online publications impacting children’s development. The Court’s case law reveals an effort to balance children’s right to privacy and other rights – in primis, freedom of expression and information – at stake in the use of new technology, but also the need for the Court to go further to better address the evolving threats that technology poses to the sound development of children. A reading of Articles 8 and 10 ECHR through the prism of the best interest of the child would help in this endeavour.