Explanatory Memorandum

1. Children and young person have the right to express their views, to participate in society as well as in the decisions affecting them by means of the Internet and other ICTs. This is based on Committee of Ministers standards which state that all children and young people under the age of 18 should have the right, the means, the space, the opportunity and, where necessary, the support to freely express their views, to be heard and to contribute to decision making on matters affecting them, their views being given due weight in accordance with their age, maturity and understanding. The right of the child and young people to participate applies fully to Internet environments without any discrimination on any grounds such as race, ethnicity, colour, sex, language, religion, political or other opinion, national or social origin, property, disability, birth, sexual orientation or other status.

2. Children and young people should be provided with information appropriate to their age and circumstances, including through social networking and other media, on the opportunities available to them to exercise their rights. They should be fully informed about the scope of their participation, including limitations of their involvement, the expected and actual outcomes of their participation and how their views were ultimately considered. Where they consider their right to participate has been violated they should be provided with effective redress and remedies, such as child-friendly means of making complaints and judicial and administrative procedures including assistance and support in using them.

3. Children and young users should be able to use the Internet in safety and with due regard for their privacy. They should receive training and information from teachers, educators and parents. Their information literacy is understood as meaning the competent use of tools providing access to information, the development of critical analysis of content and the appropriation of communication skills to foster citizenship and creativity, as well as training initiatives for children and their educators in order for them to use the Internet and information and communication technologies in a positive and responsible manner.

4. Children's right to private life has been the object of examination in cases brought before the Court. The physical and moral welfare of children are essential aspects of their right to private life. Member States have positive obligations to ensure effective respect for this right. The Court considers that effective deterrence against grave acts where fundamental values and essential aspects of private life are at stake, requires efficient criminal law provisions and investigations.

5. It is important to understand that the content that children and young people create on or using the Internet or content others create in relation to them (e.g. pictures, videos, text or other content) or the traces of this content (logs, records and processing) may last or be permanently accessible. This may challenge their dignity, security and privacy or otherwise render them vulnerable now or at a later stage in their lives. They themselves, as well as their parents, guardians, teachers and carers, should be empowered to understand and cope with this reality as well as to protect their privacy online. To this end, it is important that practical advice is made available on how to have personal information erased. The Council of Europe's Committee of Ministers has provided guidance to its member States, by stating that other than in the context of law enforcement there should be no lasting or permanently accessible record of the content created by children on the Internet which challenges their dignity, security and privacy or otherwise renders them vulnerable now or at a later stage in their lives. Therefore, member States were invited together, where appropriate, with other relevant stakeholders, to explore the feasibility of removing or deleting such content, including its traces (logs, records and processing), within a reasonably short period of time. Sub-paragraph 3, however, does not apply to content regarding children or young people created by the press or publishers. The first sentence in this provision of the Guide specifies that it addresses situations relating to content created by children or young people or other Internet users about them.

6. As regards harmful content and behaviour online, children are entitled to special care and assistance that is appropriate to their age and circumstances, in particular with regard to the risk of harm which may arise from online pornography, the degrading and stereotyped portrayal of women, the portrayal and glorification of violence and self-harm, in particular suicides, demeaning, discriminatory or racist expressions or apologia for such conduct, solicitation for sexual abuse purposes, the recruitment of child victims of trafficking in human beings, bullying, stalking and other forms of harassment, which are capable of adversely affecting the physical, emotional and psychological well-being of children. Children and young Internet users should therefore be informed, in a way that is adapted to their age and any other particular circumstances, about the types of content and behaviour that are illegal.

7. Children and young people should also be able to report content and behaviour which poses a risk of harm, and to receive advice and support, with due regard to their confidentiality and anonymity. This is particularly relevant in the context of social networks. The Committee of Ministers has recommended to its member States to take action in this respect, in particular to protect children and young people from harmful content by:

• providing clear information about the kinds of content or content-sharing or conduct that may be contrary to applicable legal provisions;
• developing editorial policies so that relevant content or behaviour can be defined as "inappropriate" in the terms and conditions of use of the social networking service, while ensuring that this approach does not restrict the right to freedom of expression and information;
• setting up easily accessible mechanisms for reporting inappropriate or apparently illegal content or behaviour posted on social networks;
• providing due-diligence response to complaints of cyber-bullying and cyber-grooming.

8. Children and young users should also be informed about the risks of interference with their physical and moral welfare, including sexual exploitation and abuse in online environments which necessitates special protection. This is referred to in the Council of Europe's Lanzarote Convention, and in the relevant case law of the Court which recognises that States have positive obligations to ensure the protection of children online.

9. According to the Lanzarote Convention, children should be protected from being recruited, caused or coerced into participating in pornographic performances made accessible or available on the Internet (for example through webcams, in chat rooms or online games). They must also be protected from solicitation through the use of the Internet or other ICTs for the purpose of engaging in sexual activities with the child (grooming) who, according to the relevant provisions of national law, has not reached the legal age for sexual activities and for the purpose of producing child pornography.

10. Children should be encouraged to participate in the development and implementation of State policies, programmes or others initiatives concerning the fight against sexual exploitation and sexual abuse of children in Internet environments. They should be provided with child-friendly and accessible means of reporting alleged sexual abuse and exploitation on the Internet and making complaints through information services such as telephone and Internet helplines. They should be provided with advice and support in using these services with due regard to their confidentiality and anonymity.

Please see here the full text of the Explanatory Memorandum.