Social media and gaming firms face a multi-million pound lawsuit for breaching children’s human right to respect for a family life with their “addictive” technology, according to a legal opinion by one of the UK’s top privacy lawyers.
Jenny Afia, a member of the Children Commissioner’s digital taskforce, says the damage caused to family life from denying children sleep and a less active outdoor life to disrupting their schoolwork and mental wellbeing amounts to a breach of article 8 of the Human Rights Act.
She believes the way the firms including Facebook, YouTube and Instagram have designed their technology to be addictive and keep children online would undermine the companies’ first line of defence under the Act that users’ have the free will to switch off their devices.
Her case is backed by evidence not only from psychologists identifying “hooks” like night-time notifications and auto-play videos but also industry insiders such as Facebook co-founder Sean Parker who admitted the applications were “all about consuming as much of [people’s] time and attention as possible.”
Ms Afia, who has represented stars from Madonna and Adele to J K Rowling and Sir Elton John, has specialised in taking on the tech companies, pressuring Instagram to re-write its terms and conditions after reducing its 17 pages of legal-ese to one child-friendly page of plain English. She is willing to take on a family's case herself.
Her move comes as The Daily Telegraph has launched a campaign for a legal duty of care on the tech firms to prevent children from suffering harm while the World Health Organisation has classified gaming disorder as a medical condition eligible to treatment on the NHS.
“Article 8 of the European Convention on Human Rights states: Everyone has the right to respect for his private and family life, his home and his correspondence,” said Ms Afia, a lawyer with Schillings who works with the 5Rights foundation to safeguard children’s development in the digital world.
“Previous cases have established a person’s private life includes their ‘physical and psychological integrity.’ These have to be respected in order to ‘ensure the development, without outside interference, of the personality of each individual in his relations with other human beings.’
“My argument is that the firms’ persuasive design strategies - or attention traps - are keeping children captive, rather than active, online. As a result, their autonomy and free will is being eroded, with huge consequences for their physical and mental development.”
The Act allows for the right to be “qualified” but only in the case of national security or public safety, not for commercial interests.
A legal team taking on the social media and gaming giants would not have to prove specific harm although cases, highlighted by The Daily Telegraph, of teenagers hospitalised as a result of their addiction to video games could be used to determine the level of damages.
Snapchat and Facebook denied they designed their products to be addictive but aimed to encourage people to develop positive and meaningful relationships off as well as online. Facebook had invested millions on research to understand better the relationship between tech and wellbeing.
Snapchat said parents, carers or young people were free to restrict screen time at four technology “layers” – mobile operator, the hardware, operating system or the app store.