In recent years, the increasing penetration of the internet across Africa has brought significant benefits in terms of education, communication, and access to information. However, it has also exposed children to various forms of online exploitation, including sexual abuse, trafficking, cyberbullying, and manipulative advertising. Children in Africa are increasingly vulnerable to the various forms of online harmful practices.

According to UNICEF's research, up to 20 percent of internet-using children in surveyed countries have experienced online sexual abuse in 2021. Additionally, over a third of children and young people encounter cyberbullying, leading to severe emotional distress and other negative outcomes. In Zambia alone, hundreds of cases of online child abuse have been reported.

Children are also susceptible to deceptive advertising due to their limited ability to understand the true intentions of marketers. Powerful algorithms used by tech giants like Meta and YouTube leverage harvested data about children's habits and preferences to keep them engaged and bombard them with manipulative ads.

A recent Human Rights Watch report highlighted that some education technology (EdTech) products targeted children with behavioural advertising, sending their data to third parties without proper safeguards. The report revealed that governments in 49 countries, including in Africa, have largely failed to protect children's rights in online learning contexts. Many EdTech products were adopted without proper scrutiny of their data handling practices. As a result, children were often compelled to use platforms that tracked their data without their knowledge or consent, exposing them to risks of exploitation and manipulation.

The lack of robust data privacy and security regulations in many African countries exacerbates the vulnerability of children to exploitation by EdTech companies and other online entities. The African Charter on the Rights and Welfare of the Child (ACRWC), adopted in 1990, does not explicitly address child protection in the online environment as it predates the widespread use of the internet. This gap in the legal framework leaves children inadequately protected against the unique risks posed by the digital environment.

Current scope of the ACRWC
Article 21 of the ACRWC prohibits practices that might be prejudicial to a child's health or life. It recognises that certain traditional and cultural practices in Africa can be detrimental to children's health and well-being, empowering states to take legislative and other measures to prohibit and eliminate such harmful practices. Examples of prohibited practices under Article 21 include female genital mutilation, child marriage, and other customs that negatively impact a child's physical, mental, or social development.

This provision is similar to Article 24 of the UN Convention on the Rights of the Child (UNCRC), which requires states to take measures to abolish traditional practices prejudicial to children's health. Both the ACRWC and the UNCRC recognise the detrimental impact of certain cultural practices on children's well-being and empower states to eliminate these customs. However, the Article 21 of the ACRWC is more specific, explicitly mentioning practices prejudicial to the health or life of the child and those discriminatory on grounds of sex or other status. It also places a stronger obligation on states by requiring them to ‘take all appropriate measures’ to eliminate harmful practices, whereas Article 24 of the UNCRC uses more general language by urging states to ‘take measures’.

Amending the ACRWC to explicitly include protection against harmful online practices could be a viable option. Given that this charter can be amended or revised if a state party submits a written request to the Chairperson of the African Union Commission, this option remains technically possible. However, considering that this treaty has only been amended once since its adoption, such a modification might be challenging to realise at this stage.

Alternatively, the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) which supervises the ACRWC could develop a General Comment on children's rights in the digital era, which would offer member states a clear framework for developing and implementing policies that safeguard children's rights in the online environment. Such a document should focus on the right to privacy and outline measures to protect children from online exploitation, cyberbullying, and other digital threats.

Additionally, it should be noted that Article 15 of the ACRWC protects children from ‘all forms of economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's physical, mental, spiritual, moral, or social development’. Thus, the protection set under this provision could logically extend to shielding children from online exploitation and harmful digital labour.

Protection mechanisms under other frameworks
Recognising these dynamics, the African Union (AU) has introduced the Child Online Safety and Empowerment Policy, which aims to safeguard children's rights in the digital space. This policy marks a significant step towards ensuring that the digital environment supports and protects African children. Key elements of the policy include the development of institutional capacity and the review of legal and regulatory frameworks to address online child rights violations, such as online child sexual exploitation and abuse. The policy also emphasises the importance of ensuring corporate responsibility and accountability for online child rights, requiring businesses to adopt practices that prevent and address child rights violations. Furthermore, the policy calls for significant investments in education, training, and public awareness to equip parents, teachers, and children with essential digital literacy and safety skills.

The AU Convention on Cyber Security and Personal Data Protection (Malabo Convention), which entered into force in 2023, further contributes to improving cybersecurity and data protection. The convention requires member states to establish comprehensive data privacy laws and combat cybercrime, which indirectly supports the protection of children from online exploitation and abuse. A key provision, Article 29(3), mandates member states to criminalise offences related to child pornography, including its production, distribution, and possession. While this provision marks an important step forward, the convention’s focus on child pornography alone is a critical limitation, as it does not address other forms of online abuse.

At the national level, many African countries still lack specific child-focused digital safety legislation. While over half of African nations have data protection laws, these often do not address child-specific issues.

In this regard, the UN Committee on the Rights of the Child’s General Comment No. 25 provides authoritative guidance on implementing the UNCRC in the context of the digital environment. It reinforces the extension of children’s rights into digital spaces, necessitating appropriate protections and the promotion of rights in digital spaces. The Comment outlines essential legislative and policy measures for states parties to ensure compliance with the Convention and its Optional Protocols. Although General Comments are not legally binding, they are considered authoritative interpretations of treaties and hold significant legal weight.

Lastly, the ACERWC’s Working Group on Children’s Rights and Business has recently issued several key recommendations to strengthen child online protection across Africa, which are worth reiterating. It urges African states to ratify and implement relevant international and regional frameworks on child online protection. It recommends the development of comprehensive online child protection laws and mechanisms for reporting and investigating online exploitation and abuse. Additionally, it emphasises the importance of ensuring that businesses are held accountable for child rights violations online, also addressing the specific needs of children with disabilities in the digital environment.

Looking forward
As it stands, it seems challenging to amend Article 21 of the ACRWC, given its history, but also because it entails evolving the notion of 'harmful practices', which is currently confined in terms of 'traditional and cultural practices'. Incorporating a digital dimension into this framework requires extensive consultation, especially given that this concept is reflected in other African treaties. Nevertheless, the entry into force of the Malabo Convention, with its protective elements, in conjunction with Article 15 of the ACRWC, offers a 'binding' foundation for safeguarding children against emerging exploitative practices in the digital space.

Cite as: Benkhadra, Reda. "The protection of children against harmful practices in the digital space: Should Article 21 of the ACRWC be pushed further?", GC Human Rights Preparedness, 12 December 2024, https://gchumanrights.org/preparedness-children/article-detail/the-protection-of-children-against-harmful-practices-in-the-digital-space-should-article-21-of-the-acrwc-be-pushed-further.html