[Rightscon 2025 Taipei] Age verification and human rights

The session will engage participants in considering the issues and seeding the drafting of a global human rights statement on online age verification mandates. After a background presentation on various global legal models to challenge such mandates (with the facilitators representing Asia, Africa, Europe, US), everyone will be encouraged to submit written inputs (that will be read during the session) and contribute to a discussion that will prioritize speakers presenting cross-regional contributions. We envision this as starting an ongoing effort that will extend beyond RightsCon with the goal of producing a human rights statement that will be shared and endorsed broadly.

The issue: States globally are considering or have passed age-verification requirements for social media, for access to certain “adult” content, or for Internet access wholly. Such requirements raise several human rights concerns, including: (1) freedom of expression of minors; (2) freedom of expression of adults who lose the ability to use services without sacrificing some degree of anonymity; (3) privacy of all online users since age verification may require all users to submit biometric and/or other highly personal information to an online or a third party age verification service. Regulators have largely ignored the human rights implications of these schemes and have rushed to (mis)appropriate child-protective access regulations for the online environment without considering its uniqueness. There has yet to be a unified statement about age-gating from civil society. Nor has there been a larger discussion about how such laws might be analyzed under various international legal systems.

Host institution: Electronic Frontier Foundation; Open Net; Software Freedom Law Centre; EDRi

KS’s Proposal:

Age gating principles

Principles of Application of International Human Rights Law to Online Age Gating

1. All adults and children must be guaranteed freedom of expression, right to information, and privacy which are essential to their development and pursuit of happiness under ICCPR.
2. All children must be guaranteed education and the right to reach their full potential under ICESR.
3. All children must be guaranteed life and development; name, nationality, and parental care; health and access to healthcare services; education; protection from abuse and neglect; freedom of expression, religion, association, and peaceful assembly; protection from economic, sexual, and other forms of exploitation; torture; and capital punishment for offenses committed before the age of 18; special protections for orphans, refugees, and the disabled under CRC.
4. All children must be allowed to benefit from “the responsibilities, rights and duties of parents … to provide … appropriate direction and guidance in the exercise by the child of the rights” under CRC.
5. All age gating measures (defined as state measures prohibiting or designed to prohibit children from accessing or expressing information or opinions of any content, time, place, or manner of their choice) must satisfy all the international human rights standards set forth above, and children as the beneficiaries of the aforesaid human rights should not be discriminated against unreasonably relative to adults. What is guaranteed to adults should be guaranteed to children unless there are specific reasons for disparate treatment.
6. Age gating measures should meet the same “three part” test which includes the tests of legality (of form), legitimacy (of ends sought), and adequacy, necessity and proportionality (of the means for/to the ends), generally applicable to international human rights analysis.
7. Age gating measures must not be implemented unless they are legislated by the supreme legislative authority of each jurisdiction in the form of a clear law made publicly available that informs all the parties of what to do and what not to do to stay in compliance with law.
8. Some age gating measures concern specifically “games” or “internet games” when the definition of “games” are difficult to enforce as a matter of law where many workplaces, educational institutions, and public commercial establishments have gamified their services to enhance the worker and consumer experience.
9. Age gating measures must be accompanied by a cogent statement of what they are aimed at achieving, and those aims should not be illegitimate, e.g., unreasonable discrimination against or oppression of children.
10. Some age gating measures claim as their ultimate end, for example, “protection of children from exposure to sexual or violent material”. Where children do enjoy freedom of expression and right to access with respect to certain sexual or violent material under ICCPR and therefore the outright ban of sexual or violent material to children constitutes oppression of children, and such a statement of the legislative purpose does not qualify as a legitimate interest.
11. Age gating measures must be adequate to achieve the stated aims. Where the stated aims are broadly worded, the governments implementing age gating measures must meet the challenge of achieving that breadth or fail the muster of adequacy.
12. If age gating measures state their legitimate goals as “protection of children from sexual or violent material destructive to their education”, those measures should be adequate to achieve that goal. In that regard, many age verification methods suffer from inadequacies as children often use the credentials of their parents or adult friends to access the contraband.
13. Age gating measures must be necessary for achieving the stated aims. In other words, they must be the least restrictive means to the ends.
14. Some age gating measures state, for instance, “prevention of the harmful effects of social media on children’s mental growth” as their legitimate goal. If so, age gating only those harmful contents will be the lesser restrictive means compared to the outright ban of all access to social media. Other age gating measures state, for instance, “prevention of the harmful effects of social media on children’s education” as their legitimate goal. If so, age gating must be limited to those contents that the primary decision maker on their education decides to avoid in order to meet the muster of the least restrictive means.
15. Age gating measures and their impact on adults and children’s aforesaid rights must be proportional to the stated aims.
16. Especially, age verification requires storage of personally identifiable information of usually confidential or semi-confidential nature such as mobile number, birth date, residential address, etc., (for the readily available information cannot serve the gating role) of all people. Such identification paralyzes all people’s right to anonymous speech and anonymous self-information and therefore generates the chilling effect on freedom of expression and information of all people. Also, such mandatory data storage clashes with the data minimization principle and suffers from the risk of data breach which endangers the privacy of all people who have engaged the age gate whether successfully or not.
17. The off-line practice of “carding” at liquor stores or establishments serving alcohol or other adult substances does not involve such invasive data storage. The governments contemplating “digital carding” for online contents must take into account the disproportionate impact relative to the “carding” on real substances.
18. Some governments, instead of directly implementing age gating measures, construct the effect of incentivizing the content providers to implement the same by imposing criminal penalties for exposing the so-called adult content to children. Generally, freedom of expression and right to information are protected at the utmost level relative to other human rights because the harmful effects of communicative action as opposed to physical action depend on how views, information, and content are understood and consumed by the receivers of those views, information, and content. Proportionality of an age gating measure must be gauged with respect to this principle.