CIVIL RIGHTS AND FREEDOMS
Legislating for the digital age - Global guide on improving legislative frameworks to protect children from online sexual exploitation and abuse
This document provides a brief overview of the publication, ‘Legislating for the digital age: Global guide on improving legislative frameworks to protect children from online sexual exploitation and abuse’ (the Global Guide). This Summary should not be read in isolation but read in conjunction with the Global Guide. Readers should check the text of the Global Guide for the details about the minimum and recommended standards articulated in the consolidated checklist. Readers should also check the text of the Global Guide for updates to the international and regional instruments as it is intended that the Global Guide will be periodically updated to reflect current law.
The Global Guide contains 11 parts. The introduction in Part 1 sets out the challenges faced by governments and the duty on the State to ensure that adequate legislation is in place to prevent, counter and address online child sexual exploitation and abuse. The introduction also sets out the structure and the major legal instruments that form the framework for the Global Guide and provides definitions and terminology.
Part 2 sets out the key standards in a consolidated checklist which States should address in their legislation. It is important to emphasise, however, that States are encouraged to integrate higher standards for the protection of human rights which go above and beyond their minimum obligations under international and regional conventions.
Part 3 deals with evidence-based legislation and the need to ensure that the State has high quality data on the trends and prevalence of child sexual exploitation and abuse to assist it in drafting legislation that focuses on children’s lived experiences and the ‘harms’ caused by online sexual exploitation and abuse. This part provides examples of good practice which States can draw on including mechanisms for integrating the voices of children, particularly those of victims of online child sexual exploitation and abuse.
Part 4 provides guidance on the legislative reform process, including potential entry points, techniques for engaging legislators, policymakers and other key stakeholders.
Part 5 reviews methods of legislative reform, and the framework within which new legislation can be introduced. This may be through a criminal justice framework, a cybersecurity law or a child rights or child protection law. The Part considers some examples and the opportunities and challenges associated with these different strategies.
The criminalization of online sexual exploitation and abuse forms part of a State party’s obligation to protect children under Article 34 of the Convention on the Rights of the Child, while the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, requires States parties to ensure as a minimum that certain acts and activities are criminalized. Part 6 sets out the offences relating to online sexual exploitation and abuse which States parties are either required to integrate into their legislative frameworks or which are recommended under international and regional standards. It covers offences relating to the production, offering, distribution, dissemination, importing and exporting of child sexual abuse material, accessing or interacting with child sexual abuse material online, online sexual extortion of a child, online grooming of a child, offences to account for new or emerging issues such as ‘cyberflashing’ and ‘cyberstalking’ and complex issues such as self-generated sexual material.
Part 7 addresses the duties and responsibilities of businesses and the private sector in protecting children from online sexual exploitation and abuse. Businesses providing content rights, connectivity, user interfaces and online services (for example, e-commerce, entertainment, search services, social and community platforms, cloud and other e-services), are key stakeholders in the digital environment and are integral to protecting children from online child sexual exploitation and abuse. Enabling platforms, advertising services and managed bandwidth and content delivery providers also play an important role. The part emphasises the need to place child rights at the core in developing legislation and examines approaches to online safety in recent legislative reforms and proposals in Australia and the UK, respectively. It also addresses issues such as age assurance, notice and takedown procedures and the detection, blocking and removal of child sexual abuse materials.
The investigation and prosecution of online child sexual exploitation and abuse raises a number of novel procedural and evidential issues due to the electronic nature of the evidence, the particular problems presented by the obtaining, retention and storage of evidence and the fact that the victim may be in a different jurisdiction to the perpetrator or even to the jurisdiction that identifies and reports the exploitation and abuse. Part 8 deals with powers and procedures that need to be put into legislation, and the use of undercover investigations, child abuse image databases and obtaining evidence from other jurisdictions through mutual legal assistance.
Article 39 of the Convention on the Rights of the Child requires States parties to ‘take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim.’ The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography further provides that States parties shall ensure that all child victims have access to adequate procedures to seek compensation for the offences committed against them. Part 9 examines what should be provided in terms of support services and how children can access compensation through the justice system or State-run compensation schemes, as well as their limitations.
Part 10 of the Guide outlines the important role that independent monitoring and regulation of the digital environment plays in protecting children from online sexual exploitation and abuse and the need to integrate children’s rights to safety in the digital environment into the legislative mandate and activities of the State’s national human rights institution for children.
Finally, Part 11 deals with the implementation of primary legislation to address online child sexual exploitation and abuse, the need to develop secondary legislation to ensure effective implementation and to raise awareness and educate, particularly children, parents, carers and law enforcement authorities, on its contents.