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apps) extract personal information from users, viewing it “as a commodity to be exploited … to gain competitive advantage”
(43, p. 223). Such exploitation includes extensive marketing to children (44).
An overarching principle of the United Nations Convention on the Rights of the Child (2) is that, in actions concerning
children, the best interests of the child are a primary consideration (Art. 3). The Convention articulates children’s rights
to both participation and protection, and the digital environment is no exception. Children’s participation rights include
freedom of expression (Art. 13), freedom of association (Art. 14) and access to information and the mass media (Art.
17). In addition to information and media access, Article 17 also encourages States to develop “appropriate guidelines
for the protection of the child from information and material injurious to his or her well-being”. Furthermore, under
the Convention, children enjoy protection, rights, such as rights to health (Art. 24), privacy (Art. 16) and protection
from economic exploitation (Art. 32). 4 The Convention on the Rights of the Child stipulates that these rights must be
effectively protected (Art. 4), citing parental responsibility to nurture children (Art. 5), but importantly also invoking States’
responsibility to protect and assist families in doing so (Art. 18). Food marketing is also implicated in rights under non-childspecific
instruments, such as the International Covenant on Economic, Social and Cultural Rights (8). For example, Article
12 provides for the right to “the enjoyment of the highest attainable standard of physical and mental health” and states
specifically that nations should take the necessary steps for “the healthy development of the child” and “(t)he prevention,
treatment and control of … diseases”.
More recently, the human rights obligations of businesses (as distinct from States) have been articulated, with guiding
principles and statements on how these apply to children (45–47). The United Nations Guiding principles on business
and human rights (or ‘Ruggie principles’) (45), unanimously adopted by the United Nations Human Rights Council in
June 2011, state that “Business enterprises should … avoid infringing on the human rights of others and should address
adverse human rights impacts with which they are involved” (p. 14). Business enterprises should consult meaningfully with
stakeholders to determine the risks to human rights associated with their activities and take appropriate action to prevent
and mitigate adverse impacts. The Children’s rights and business principles (47) identifies 10 general obligations, including
ensuring that marketing and advertising “respect and support children’s rights” and to “(r)einforce government and
community efforts to protect and fulfil children’s rights”. In the United Nations Global Compact’s list of Good practices per
principle (48), the section on obligations in marketing and advertising includes many examples involving food and beverage
manufacturers.
Taken as a whole, this rights-based framework suggests that children have a right to participate in digital media; that when
they are participating, they also have the right to have their health and privacy protected and not to be economically
exploited; and that not only should parents facilitate these safeguards but States should support parents in doing so.
Therefore, the current challenge of restricting digital marketing of HFSS foods to children should be addressed through
these inter-linked lenses: reducing children’s risk for health problems both now and in the future and securing children’s
right to be protected from undue harm, while at the same time facilitating their right to participate in public life, including
on the Internet.
We return to the central issue of balancing children’s participation and protection rights in media environments below
when discussing implications for policy and legislative action. First, however, we outline the landscape of children’s use of
digital media and the nature, extent and impact of digital marketing of HFSS foods, to underpin the case for expanding and
strengthening food marketing restrictions in the digital era.
4
Handsley et al. (45, p. 131) argue that the reference in Article 32 to work does not exhaust the possibilities for economic exploitation and that “We are participating in the
economy no less when we consume than when we work. Therefore, the exploitation of children as consumers answers the description of ‘economic exploitation’ no less than
does their exploitation as workers. And advertising is central to the process of socializing children as consumers”.
6