Article 8 GDPR

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Article 8: Child’s consent
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Chapter 10: Delegated and implementing acts

Legal Text


Article 8: Conditions applicable to child’s consent in relation to information society services

1. Where point (a) of Article 6(1) applies, in relation to the offer of information society services directly to a child, the processing of the personal data of a child shall be lawful where the child is at least 16 years old. Where the child is below the age of 16 years, such processing shall be lawful only if and to the extent that consent is given or authorised by the holder of parental responsibility over the child. Member States may provide by law for a lower age for those purposes provided that such lower age is not below 13 years.

2. The controller shall 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.

3. Paragraph 1 shall not affect the general contract law of Member States such as the rules on the validity, formation or effect of a contract in relation to a child.

Relevant Recitals

Recital 38: Protection for Children
Children merit specific protection with regard to their personal data, as they may be less aware of the risks, consequences and safeguards concerned and their rights in relation to the processing of personal data. Such specific protection should, in particular, apply to the use of personal data of children for the purposes of marketing or creating personality or user profiles and the collection of personal data with regard to children when using services offered directly to a child. The consent of the holder of parental responsibility should not be necessary in the context of preventive or counselling services offered directly to a child.

Commentary

According to Recital 38, children benefit from specific protections by reason of their reduced understanding of the risks, consequences and rights related to the processing of personal data. This is particularly the case when children’s data are used for marketing and profiling activities as well as when a service involving the collection and use of such data is offered directly to children. As such, Article 8 GDPR stipulates additional requirements for consent by children.

(1) Material scope

Article 8 GDPR applies only if the processing of data (i) relies on consent as a legal basis and (ii) if the internet society service is being offered "directly" to a child.

Child consent

A map of GDPR age of consent across the different EU and EEA nations

Under the GDPR, the default age at which a person is no longer considered a child - and can therefore express valid consent - is 16. In principle, age verification should not lead to excessive data processing. In other words, it may be appropriate to simply require a new subscriber to disclose their year of birth or to fill out a form stating that they are (not) a minor in some low-risk situations. However, if processing involves higher risks or if doubts arise concerning the truthfulness of the user's statement, the controller should review their age verification mechanisms and consider introducing alternative checks.[1]

The 16-year age limit is not absolute. Under Article 8(1) GDPR, Member States can adjust this age requirement to anywhere between 13 and 16 years. Thus, controllers must identify the legal age of consent in the jurisdictions that they operate in by taking into account its target demographic. In particular, it should be noted that "a controller providing a cross-border service cannot always rely on complying with only the law of the Member State in which it has its main establishment but may need to comply with the respective national laws of each Member State in which it offers the information society service(s)."[2]

Information society service

According to Article 4(25) GDPR, which in turn refers to Article 1(1) of Directive (EU) 2015/1535, an "information society service" (ISS) is any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.

For the purposes of this definition: (i) ‘at a distance’ means that the service is provided without the parties being physically present; (ii) ‘by electronic means’ means that the service is both sent and received at its destination through electronic equipment which processes and stores data, as well as entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means; (iii) ‘at the individual request of a recipient of services’ means that the service is provided through the transmission of data on individual request.

It follows that, if a service does not meet the aforementioned requirements, Article 8 GDPR (and its safeguards) will not apply. Take services which are not offered "at a distance" (for example, electronic games in an arcade room), or are not provided "electronically" (medical advice by telephone), or concern the exchange of goods and not services (the purchase and sale of mobile phones via corresponding digital sales platforms).[3]Further, in accordance with the accountability principle, the EDPB has stressed that it is up to the controller to determine what measures are appropriate in a specific case. As a general rule, controllers should avoid verification solutions which themselves involve the excessive collection of personal data.

Directly offered

The use of the wording ‘offered directly to a child’ shows that only some ISSs fall within the scope of Article 8 GDPR. In other words, if an information society service provider makes it clear to potential users that "it is only offering its service to persons aged 18 or over, and this is not undermined by other evidence (such as the content of the site or marketing plans) then the service will not be considered to be ‘offered directly to a child’ and Article 8 will not apply".[4]

(2) Verification of parental consent by the controller

Where the child is below the age of 16 years (or the lower age set forth by national law), such processing shall be lawful only if and to the extent that consent is given by their legal guardian.

Article 8(2) GDPR requires the controller to take "reasonable efforts" to verify that the child was authorised by a guardian to use the information society service. According to the EDPB, what is reasonable once again depends upon "the risks inherent in the processing as well as the available technology. In low-risk cases, verification of parental responsibility via email may be sufficient. Conversely, in high-risk cases, it may be appropriate to ask for more proof, so that the controller is able to verify and retain the information pursuant to Article 7(1) GDPR".[5]In practice, this can be done in different ways. For example, the EDPB has suggested that a parent or guardian could be asked to make a payment of €0,01 to the controller via a bank transaction, and include a brief confirmation in the description line of the transaction that the bank account holder is the user’s legal guardian. Another option could be the use of trusted third party verification services.[6]

(3) National contract law

Article 8(3) GDPR makes it clear that Article 8(1) GDPR only refers to consent, not to the object of the legal transaction between the data subject and the controller, typically the contract. This means that consent can be given without the legal transaction taking place and that the legal transaction can be effective even if the consent is not.

Decisions

→ You can find all related decisions in Category:Article 8 GDPR

References

  1. EDPB, ‘Guidelines 05/2020 on consent under Regulation 2016/679’, 4 May 2020 (Version 1.1), p. 28 (available here).
  2. EDPB, ‘Guidelines 05/2020 on consent under Regulation 2016/679’, 4 May 2020 (Version 1.1), p. 27 (available here).
  3. Kühling, Buchner, in Kühling, Buchner, DS-GVO BDSG, Article 8 GDPR, margin number 13 (C.H. Beck 2020, 3rd Edition).
  4. EDPB, ‘Guidelines 05/2020 on consent under Regulation 2016/679’, 4 May 2020 (Version 1.1), p. 27 (available here).
  5. EDPB, ‘Guidelines 05/2020 on consent under Regulation 2016/679’, 4 May 2020 (Version 1.1), p. 27 (available here).
  6. EDPB, ‘Guidelines 05/2020 on consent under Regulation 2016/679’, 4 May 2020 (Version 1.1), p. 27 (available here).