The Use of Alternative Regulatory Instruments to Protect Minors in the Digital Era: Applying Freedom of Expression Safeguards
| Published date | 01 June 2011 |
| Date | 01 June 2011 |
| DOI | http://doi.org/10.1177/016934411102900202 |
| Subject Matter | Part A: Article |
Netherlands Q uarterly of Human R ights, Vol. 29/2, 164–188, 2011.
164 © Ne therlands Instit ute of Human Rights (SIM), Pr inted in the Netherla nds.
PART A: ARTICLES
tHe Use oF ALteRnAtIve ReGULAtoRy
InstRUMents to PRoteCt MInoRs In
tHe DIGItAL eRA: APPLyInG FReeDoM
oF exPRessIon sAFeGUARDs
E L*
Abstract
Since the mid-1990s, it ha s become inc reasingly clear that legislation, used to protect
minors against harmf ul content in tradition al media, is not suitable to regul ate the
drastically trans formed digital media l andscape in an eci ent manner. In response to
this situation, alternative regulatory instruments (ARIs), such as self- and co-regulation,
have been incorporated in regulatory strategies to protect minors against harmful digital
content. Notwithstanding the common misconcept ion that ARIs function within a legal
vacuum, the use of such instruments should comply with the broader legal f ramework,
and more importantly, must respect a number of fundame ntal rights, such as the rights
to freedom of expression, privacy, a fair trial and an eective remedy. i s articl e
focuses on the right to freedom of ex pression and aims to asse ss with which freedom of
expression safeguards the ARIs must comply in order to guarantee the protection that
this right entails. To achieve this, the article examines, on the one hand, the applicability
of Article 10 ECHR with respect to ARIs, and, on the other hand, the fundamental rights
issues that may arise both with respect to the involvement of private ac tors and the
incorporation of technologica l tools in ARIs.
1. INTRODUCTION
e emergence of new digital tech nologies, such as the Internet in the 1990 s, has had
a signicant impact on the availabil ity, accessibility and quantit y of media content. In
addition, the production, distribution and consumption of media content has changed
considerably due to t he convergence of dierent technologies. Convergence, which
* Postdoctoral researc her at the Interdisciplinar y Centre for Law & ICT (ICRI, K.U.Leuven, Belgium,
www.icri.b e) – IBBT (Interdiscipl inary Institute for Broadband Technology, www.ibbt. be). Her
research is cu rrently funded by t he Research Fund K.U.Leu ven (Onderzoeksfonds K.U.Leuven). All
internet sites were la st accessed on 30 May 2011.
e Use of Alternative R egulatory Inst ruments to Protect Mi nors in the Digita l Era
Netherlands Q uarterly of Human R ights, Vol. 29/2 (2011) 165
entails the abi lity of dierent network platforms to ca rry es sentially si milar k inds
of serv ices,1 has le d to the phenomenon of ‘networked media’, imply ing that me dia
content is produced, d istributed, sha red, managed and consumed throug h various
networks in a converged manner. is has inuenced media consumption patterns
and means t hat content can now be accessed on an ‘anywhere-anyti me-anything’
basis. Consumers a nd users can exercise much more control over thei r media use
and, in addition, have a w ide range of opport unities in ter ms of content production
(‘user generated content’). Notwithstanding the many benets that these evolutions
have brought, in particu lar w ith regard to the enjoyment of the right to freedom
of expression and the free ow of information, concerns regarding the expo sure of
children to harmful digital content – which arise every time a new (mass) medium
appears – have been at the top of many national a s well as European policym akers’
agendas for the past decade. Whereas legislation t hat aims at protecti ng minors is
traditional ly created, implemented and enforced by the government, since the mid-
1990s, it has been suggested that alternative regulatory instruments (ARIs) such as self-
and co-regulation might be more ecient to deal with these concerns than traditional
legislation. Self-regulatory instruments a re instru ments in which the addressees of
regulation dra and implement certain regulatory principles, co-regulation refers
to ty pes of regu latory instruments where government a nd other actors (such as the
private sector, but also NGOs or interest groups) cooperate in the dierent phases of
the regulatory proce ss.
e a im of this a rticle is to ass ess which freedom of expression s afeguards t he
ARIs must comply with in order to guarantee the protection that this right, as laid
down in the European Convention on Human R ights (ECHR), entails. Whereas a
number of other fundamental rights are also relevant to the analysis of the compliance
of ARIs w ith the broader legal f ramework, such as the r ight to privacy (Article 8
children f rom harmful content in digital med ia and protecting the right to f reedom
of expression of both chi ldren and adults. Accordingly, this a rticle will exam ine how
ARIs reconcile th is tension.
On the one ha nd, protect ing ch ildren from ex posure to harm ful content is a
legitimate public interest goal, for instance included in Article 17 of the United Nations
1 Commission of the European C ommunities, Green Pape r on the convergence of the
telecommunica tions, media and i nformation technolo gy sectors, and th e implications for reg ulation,
COM (1997) 623 nal, 3 December 19 97, page 1.
2 Compliance with these other huma n rights, with interna l market regulation such as f ree movement
of goods and serv ices, with competition r ules, and with genera l European Union (EU) leg islative
requirements suc h as Article 2 88(3) Treaty on the Function ing of the Europe an Union concernin g
the implementat ion of directives , was also stud ied by the author i n the course of her PhD research
(Lievens, Eva, Prote cting chil dren in the digital era: the use of alter native regu latory in struments,
Martinus N ijho Publishers, Leiden, 2 010).
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