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BACKGROUND

Published 19.11.21

General comment No. 25 - Chapter V: General measures of implementation by States parties J - K 1

J. Commercial advertising and marketing

  1. The digital environment includes businesses that rely financially on processing personal data to target revenue-generating or paid-for content, and such processes intentionally and unintentionally affect the digital experiences of children. Many of those processes involve multiple commercial partners, creating a supply chain of commercial activity and the processing of personal data that may result in violations or abuses of children’s rights, including through advertising design features that anticipate and guide a child’s actions towards more extreme content, automated notifications that can interrupt sleep or the use of a child’s personal information or location to target potentially harmful commercially driven content.

  2. States parties should make the best interests of the child a primary consideration when regulating advertising and marketing addressed to and accessible to children. Sponsorship, product placement and all other forms of commercially driven content should be clearly distinguished from all other content and should not perpetuate gender or racial stereotypes.

  3. States parties should prohibit by law the profiling or targeting of children of any age for commercial purposes on the basis of a digital record of their actual or inferred characteristics, including group or collective data, targeting by association or affinity profiling. Practices that rely on neuromarketing, emotional analytics, immersive advertising and advertising in virtual and augmented reality environments to promote products, applications and services should also be prohibited from engagement directly or indirectly with children.

  4. K. Access to justice and remedies

  5. Children face particular challenges in access to justice relating to the digital environment for a range of reasons. Such challenges arise because of the lack of legislation placing sanctions on children’s rights violations specifically in relation to the digital environment, the difficulties in obtaining evidence or identifying perpetrators or because children and their parents or caregivers lack knowledge of their rights or of what constitutes a violation or abuse of their rights in the digital environment, among other factors. Further challenges may arise if children are required to disclose sensitive or private online activities or from their fear of reprisals by peers or of social exclusion.

  6. States parties should ensure that appropriate and effective remedial judicial and non-judicial mechanisms for the violations of children’s rights relating to the digital environment are widely known and readily available to all children and their representatives. Complaint and reporting mechanisms should be free of charge, safe, confidential, responsive, child-friendly and available in accessible formats. States parties should also provide for collective complaints, including class action and public interest litigation, and for legal or other appropriate assistance, including through specialized services, to children whose rights have been violated in or through the digital environment.

  7. States parties should establish, coordinate and regularly monitor and evaluate frameworks for the referral of such cases and the provision of effective support to children who are victims. Frameworks should include measures for the identification of, therapy and follow-up care for, and the social reintegration of, children who are victims. Training on the identification of children who are victims should be included in referral mechanisms, including for digital service providers. Measures within such a framework should be multi-agency and child-friendly, to prevent a child’s revictimization and secondary victimization in the context of investigative and judicial processes. That may require specialized protections for confidentiality and to redress harms associated with the digital environment.

  8. Appropriate reparation includes restitution, compensation and satisfaction and may require apology, correction, removal of unlawful content, access to psychological recovery services or other measures. In relation to violations in the digital environment, remedial mechanisms should take into account the vulnerability of children and the need to be swift to halt ongoing and future damage. States parties should guarantee the non-recurrence of violations, including by the reform of relevant laws and policies and their effective implementation.

  9. Digital technologies bring additional complexity to the investigation and prosecution of crimes against children, which may cross national borders. States parties should address the ways in which uses of digital technologies may facilitate or impede the investigation and prosecution of crimes against children and take all available preventative, enforcement and remedial measures, including in cooperation with international partners. They should provide specialized training for law enforcement officials, prosecutors and judges regarding child rights violations specifically associated with the digital environment, including through international cooperation.

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