What does the ‘best interests of the child’ mean for protecting children’s digital rights? A narrative literature review in the context of the ICO’s Age appropriate design code

The ICO's Age Appropriate Design Code puts the best interests of the child at the front and centre of its requirements. However, the best interests of the child is an uncertain and contested principle. This article reviews the current literature in the field of children's digital rights to examine whether there is consensus on what the best interests of the child means, in order to inform the application of this important principle. The article also explores issues relevant to the best interests of the child which have not currently received attention in the digital rights literature, but which have arisen in different fields. It is argued that should digital service providers justify their design decisions on the basis that they promote the best interests of the majority of children yet harm those of a minority, or that economic interests outweigh the best interests of the child the ICO will not be able to avoid having to come to conclusions as to where an appropriate substantive balance lies. This article concludes that how companies and the ICO should determine the best interests of the child needs to be operationalised in clear, consistent ways.