Article 8 GDPR
|← Article 8: Child’s consent →|
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.
Article 8 regulates consent for children. Article 8 applies only if the processing of data relies on consent as a legal basis and if an internet society service is being offered "directly" to a child. Thus, Article 8 does not apply when a child uses a service that is not aimed at them, for example a dating app.
(1) Age of consent
Under the GDPR, the default age at which a person is no longer considered a child is 16, but it allows Member States to adjust that limit to anywhere between 13 and 16. Controllers therefore must know the age of consent for the jurisdictions they operate in and cannot seek consent from anyone under that age.
(2) Verification of parental consent
Article 8(2) accompanies the requirement of consent or approval for children under 13 by regulating the obligation of the controller to "reasonable efforts" with regard to consent or approval to make sure the child was indeed authorized by a guardian to use the information society service. It will be necessary to contact the holder of parental responsibility and obtain their positive feedback. Some authors claim this can be done by way of a double opt-in procedure. In order to obtain this information, the controller is dependent on the participation of the young person, such as the indication of an e-mail address in order to identify the holder of the parental responsibility.
(3) National contract law
Article 8(3) makes it clear that Article 8(1) 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.
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