Datafication as parenthesis: reconceptualising the best interests of the child principle in data protection law

Abstract

ABSTRACT The objective of this article is to shed light on a question that has considerable policy significance for the child as a data subject under the General Data Protection Regulation 2016 (‘Regulation 2016/679’) – how can we better integrate the best interests of the child principle, including the emphasis placed by the United Nations Convention on the Rights of the Child (CRC) on respecting a child's autonomy and development in a datafied environment? This article lays the foundation to an answer in three steps. First, it questions whether the political act of integrating the lifeworlds of children into digital infrastructures of the personal data economy and structuring of responsibilities to be owed by data controllers through data protection rules and principles is truly empowering. Second, it uses the dialectical relationship between critical infrastructures in the datafied environment and data protection rules to explain the ramifications of the analytical shift from children's rights to information rights, for conceptions and understandings of autonomy, agency and best interests. Third, CRC provisions will be used to expose the incompatibility of the ontological turn initiated by data protection rules and platform infrastructures with received understandings of the best interests of the child principle. The article concludes with an account of how the present gulf that exists in the understanding of the role of CRC and their application in data protection policymaking in a datafied environment could be bridged.