Europe Could Kick Majority of Teens Off Social Media, and That Would B
This is just one of many headlines that struck a chord when agreement was reached on the General Data Protection Regulation (GDPR). The headline refers to a provision inserted in the GDPR, which, in one swift move on 15 December 2015, turned the clock back to the days when decisions about children were firmly placed in the hands of adults. The headline also reminded me of the case of Re Agar-Ellis ((1883) 24 Ch D 317). During the Victorian age, children were expected to follow the wishes and commands of their parent. Non-compliance was met with severe sanctions such as financial restrictions, banishment and even being cut-off inheritance. The power of the parent only ceased when a child attained the age of majority. History is being repeated. Article 8 of the GDPR states that where information society services, such as those provided by social networking sites and mobile apps providers rely on consent of the child when processing her personal data, prior authorisation would be needed of persons with responsibility for the child. Of course, as many have pointed out, there are some qualifications. Where Article 6 (1)(a) applies, in relation to the offering of information society services directly to a child:
the processing of personal data of a child below the age of 16 years, or if provided for by Member State law a lower age which shall not be below 13 years, shall only be lawful if and to the extent that such consent is given or authorised by the holder of parental responsibility over the child.
Information services providers will now be required to make
reasonable efforts to verify in such cases that consent is given or authorised by the holder of parental responsibility over the child, taking into consideration available technology.
There was rightful indignation directed at the draft that preceded Article 8. Janice Richardson, questioned the short-sightedness of policymakers in using data protection regulation to encroach into broader social and developmental issues. Larry Magid, regarded this new provision as nothing short of policymaking that was well out of kilter with cultural, social and developmental needs of children in the digital age. John Carr in his blog highlighted the practical and likely adverse consequences of this last minute policy intervention. Sonia Livingstone, gets to the heart of the issue by questioning the reasoning process of policymakers when drafting Article 8 in view of the significant advances made in ensuring that children’s rights become the cornerstone in digital media governance and that their voices are heard when decisions that impact their daily lives are taken. I want in this short post to highlight the salience of a common feature in all these reactions – the touchstone of children’s rights in the digital age is respect for their human rights. I discussed this aspect briefly, in Networked Children, Commercial Profiling and The EU Data Protection Reform Agenda: In the Child’s Best Interests? One concern buried in the analysis in that paper was that I was not entirely convinced that data protection policymaking was familiar with values encapsulated in Article 24 of the Charter of Fundamental Rights, which states that in all actions relating to children, the best interests of the child must be a primary consideration. The inclusion of age and verification requirements in Article 8 of the General Data Protection Regulation suggests, at least from my reading of this provision, that policymakers have yet to fully grasp the significance of translating Article 24 of the Charter into meaningful policy adjustments into data protection law. If we learnt anything from the House of Lords judgment in Gillick, about how law strives to balance societal, parents and children’s interests it surely cannot be regarded as endorsing this mindset –
“Provided that if the parent of any pupil gives to the authority notice that he objects to the pupil availing himself of any of the provision [for medical treatment etc] so made the pupil shall not be encouraged . . . so to do.”
Regardless of whether we think consent in the digital age is meaningless or just illusory, it still has a role in society, particularly where children are concerned. What is missing from the way policymakers have drafted Article 8, is their inability to appreciate, at a practical level, that if children as individuals are taken seriously, respect for their human rights would mean that their interests and needs is not readily assumed to be aligned with those of their parents. This is a debate for another time. Sometimes, it may not be a bad idea for policymakers in data protection to familiarise themselves with the wisdom of the common law: “The law relating to parent and child is concerned with the problems of the growth and maturity of the human personality. If the law should impose on the process of ‘growing up’ fixed limits where nature knows only a continuous process, the price would be artificiality and a lack of realism in an area where the law must be sensitive to human development and social change. If certainty be thought desirable, it is better that the rigid demarcations necessary to achieve it should be laid down by legislation after a full consideration of all the relevant factors than by the courts, confined as they are by the forensic process to the evidence adduced by the parties and to whatever may properly fall within the judicial notice of judges. Unless and until Parliament should think fit to intervene, the courts should establish a principle flexible enough to enable justice to be achieved by its application to the particular circumstances proved by the evidence placed before them. The underlying principle of the law …is that parental right yields to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.”
As reactions to Article 8 GDPR have shown, Lord Scarman is not a solitary voice. To this it is worth recounting the wise words of Lord Denning MR in Hewer v Bryant  3 All ER 578 at 582, when thinking about consent and our relationship with children:
“It starts with a right of control and ends with little more than advice.”