Overall, the proposed Regulation aims at improving the respect of the rights of the child online ( ). In line with their best interest, the access delay aims at ensuring a better protection of the health and security of minors’ online ( , ). The minimum age does not curtail their access to the digital environment as a whole but rather set a delayed start date for their autonomous access to a set of digital services that are deemed to be risky or harmful to the privacy, safety and wellbeing of younger minors. The delay particularly takes into account the evolving capacities of children, and as explained in the Report of the Co-Chairs of the Special Panel, it considers the importance for children under 15 to gradually transition to autonomous use, whilst also ensuring that such autonomous use above 15 years old remains safe by design. Indeed, the proposed Regulation sets out that in cases where a service is specifically designed for children and provides limited functionalities and all the appropriate safeguards to pose no risks for children under the minimum age, such services may be accessible under parental supervision. Additionally, exceptions to the delay are provided to ensure that the set of services covered by the minimum age does not cover those where children may need access to information, education materials, public services or other activities that are in their best interest.
Access restrictions for minors could indeed be considered as an interference with other rights of the child, notably the right to freedom of expression, participation and access to information, and they must therefore pursue a legitimate aim and be proportionate for such objective. As recognises by several judicial instances, limitations to freedom of expression and other rights should thus be justified in the best interest of the child. This should serve as principle to balance the different rights of the child in view of the recognised and documented risks to the safety, wellbeing, free development and self-determination of minors stemming from the use of types of services and systems that present certain features – i.e., notably the online environments created by “social media+”, which according to the Report of the Co-Chairs of the Special Panel “expose them to diverse risks for their physical and mental health and development at different ages” ( ).
The Report of the Co-Chairs of the Special Panel explains how the different phases in the years from 0 to 15 are particularly important for minors’ cognitive, emotional and social development, as well as for the evolution of their personality, identity and value systems. Risks evolve with the development of the child. From risks as passive online users in early ages, when much needed care risks to become neglected if substituted by screentime, thus affecting children’s attention span, language acquisition, and socio-emotional development; through risks of mismatch between continuous exposure to external stimulation and children’s evolving capacities and emerging self-perception in the years leading to adolescence; to risks of convergence of developmental sensitivities and platform-driven amplification of content and interactions in early adolescence. Research shows mental health impacts and that children are especially vulnerable under the age of 13, and until 15 adolescents transition into autonomy, so whilst supervision by caregivers and educators gradually becomes ineffective, risks are increasingly shaped by social elements of digital services, rather than individual behaviours, thus adolescents from 13 to 15 are at the peak of vulnerability to mental health issues. It is thus important to ensure that children’s rights to safety as well as healthy development and self-determination are enjoyed in conjunction with other rights – notably to information, expression or participation, free from the substantial impacts that certain online services can have on them.
Furthermore, as also enshrined in Article 24(3) of the Charter and recognised in the Report of the Co-Chairs of the Special Panel, it is important to take into account the role of guardians in supporting the minor's transition to autonomous and safe use of digital services. Until the age of 15, adolescents gradually transition from supervised development to guided online use and evolving autonomy. They increasingly encounter opportunities presented by the online world to connect, learn and develop and share their interests with others, thus whilst they may not benefit from being fully limited in their exposure, they can still enjoy safeguards and be protected from potential harm during these stages of developmental vulnerability, characterised by the convergence of identity formation, heightened socio-emotional sensitivity and decreasing effectiveness and importance of supervision by caregivers and educators. The proposed Regulation thus set out that guardians should be able to support children with the creation of child-friendly accounts, subject to safeguards ensuring effective parental supervision on the service, including the ability to adapt account settings progressively to the minor's evolving capacities, limit the duration of access and suspend the account if necessary.
The delayed start date in the proposed Regulation is therefore proportionate to the risks posed by the types of services and systems in scope, which by design present characteristics, features and functionalities that expose minors to risks related to inappropriate content, contacts, conducts and commercial practices. However, besides the services and systems subject to the general exception mentioned above, there exist the risks that some services may fall in scope of the age restriction without an established and demonstrated risk to the safety of minors, for instance designed and operated specifically and in the best interest of minors. This risk may be considered in view of a precautionary principle, which as explained in the Report of the Co-Chairs of the Special Panel also means that “age restrictions may be a necessary precautionary step until social media+ spaces are shown to be safe […] or until safe alternatives emerge” and represent “immediate measures to achieve the long-term goal of ensuring social media+ spaces are safe” ( ). The proposed Regulation thus foresees that children can access under parental supervision services that can be deemed to be designed and operated in the best interest of children. This provides the margin for guardians to take into account the specific circumstances of the child, including maturity, personal situation and socioeconomic context in connection to the type and nature of the service and system, and therefore mitigate the risk of an excessive and disproportionate age restriction, in the best interest of the child, including by adapting the settings and safeguards of the services to the age and needs of the minor.
Safety by design requirements are also key to ensure the rights of the child online ( ), including for those minors above the minimum age that increasingly experience the online environment in autonomy. Providing a safer environment for minors aim at ensuring that everyone can participate and enjoy the opportunities of the digital world without risk of being exposed to risks for mental wellbeing, harmful content or behaviours and other forms of online abuse or commercial exploitation. Thus, safety by design requirements on safe settings provide protection from exposure of minors and their content or information to unwanted contacts, abusive behaviours by other users, or risks of developing compulsive or addictive behaviours or mental health conditions linked to exposure to harmful content. Obligations on recommender systems further aim at ensuring the quality, diversity and age appropriateness of information suggested to children ( , ). This is critical to stimulate children’s right to developing and holding their own opinion ( ). Furthermore, the proposed Regulation provides that effective, visible and child-friendly mechanisms for reporting and support should be available and accessible for minors to report content, accounts, groups, features and behaviour that may negatively affect their privacy, safety and security when using the service, as well as to be informed and supported in understanding risks prior to engaging in certain activities such as posting or sharing content or enhancing the visibility of their information or that of other users.
To ensure the protection of minors online, robust and effective age assurance systems are recognised as necessary to recognise their presence online and limit their exposure to illegal or harmful products or services, as well as a being a precondition for an age-appropriate, safer and more empowering environment for children ( ). With its clear requirements, the proposed Regulation will ensure that age assurance systems are effective, not easily circumventable, respectful of children’s privacy and implemented in line with their best interest. In recognition of the key role that parents play in the upbringing and development of their children, the proposed Regulation mandates tools for guardians, which should be available and apply as appropriate for all services and systems and all minors, in addition to supervised accounts for under 13, and accounts created by guardians for 13-15. Those tools must be provided in line with the evolving capacities of children, and in respect with their rights to privacy.
As for additional requirements for AI companions and general conversational chatbots, the proposed Regulation supports the child’s rights, including their dignity, mental well-being and best interests. The proposed Regulation requires providers to avoid design features and system behaviours that simulate interpersonal relations that are likely to create emotional dependencies. This can help protect children from becoming emotionally attached to a chatbot in ways that may affect their social development, autonomy or emotional balance. Safeguards on addictive designs, safe settings and safe and secure economic transactions are also set out. Performing state of the art evaluations and testing before and after the AI companions are placed on the market and post-market monitoring strengthen the practical protection of minors’ fundamental rights over time promoting a safer digital environment.
