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

Under Recital 38 children merit specific protection given their reduced understanding of the risks, consequences and rights in relation to the processing of personal data. This is particularly the case when children 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. In this perspective, 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 internet society service is being offered "directly" to a child.

Child Consent

Under the GDPR, the default age at which a person is no longer considered a child is 16. Article 8(1) GDPR allows Member States to adjust that standard to anywhere between 13 and 16 years. 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 the holder of parental responsibility over the child. Controllers therefore must know the age of consent in the jurisdictions that they operate in and cannot seek consent from anyone under that age.

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 simultaneously present; (ii) ‘by electronic means’ means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and 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 above-mentioned 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).[1]

Directly Offered

The use of the wording ‘offered directly to a child’ shows that only a part of ISS 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".[2]

(2) Verification of Parental Consent by the Controller

Article 8(2) GDPR accompanies the requirement of consent or approval by children with the obligation that the controller to take "reasonable efforts" to verify that the child was authorized by a guardian to use the information society service. It is necessary to contact the holder of parental responsibility (e.g. the child's legal guardian) and obtain their positive affirmation of the child's consent. Some scholars claim this can be done by way of a double opt-in procedure [reference needed]. In order to obtain parental consent, 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 parent or guardian.

(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. Kühling, Buchner, in Kühling, Buchner, DS-GVO BDSG, Article 8 GDPR, margin numbers 13 (Beck 2020, 3rd ed.) (accessed 11 November 2021).
  2. EDPB, Guidelines 05/2020 on consent under Regulation 2016/679, 4 May 2020, p. 26.