Article 8 GDPR

← Article 8: Child’s consent →
Chapter 1: General provisions Article 1: Subject-matter and objectives Article 2: Material scope Article 3: Territorial scope Article 4: Definitions Chapter 2: Principles Article 5: Principles relating to processing of personal data Article 6: Lawfulness of processing Article 7: Conditions for consent Article 8: Conditions applicable to child’s consent in relation to information society services Article 9: Processing of special categories of personal data Article 10: Processing of personal data relating to criminal convictions and offences Article 11: Processing which does not require identification Chapter 3: Rights of the data subject Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject Article 13: Information to be provided where personal data are collected from the data subject Article 14: Information to be provided where personal data have not been obtained from the data subject Article 15: Right of access by the data subject Article 16: Right to rectification Article 17: Right to erasure (‘right to be forgotten’) Article 18: Right to restriction of processing Article 19: Notification obligation regarding rectification or erasure of personal data or restriction of processing Article 20: Right to data portability Article 21: Right to object Article 22: Automated individual decision-making, including profiling Article 23: Restrictions Chapter 4: Controller and processor Article 24: Responsibility of the controller Article 25: Data protection by design and by default Article 26: Joint controllers Article 27: Representatives of controllers or processors not established in the Union Article 28: Processor Article 29: Processing under the authority of the controller or processor Article 30: Records of processing activities Article 31: Cooperation with the supervisory authority Article 32: Security of processing Article 33: Notification of a personal data breach to the supervisory authority Article 34: Communication of a personal data breach to the data subject Article 35: Data protection impact assessment Article 36: Prior consultation Article 37: Designation of the data protection officer Article 38: Position of the data protection officer Article 39: Tasks of the data protection officer Article 40: Codes of conduct Article 41: Monitoring of approved codes of conduct Article 42: Certification Article 43: Certification bodies Chapter 5: Transfers of personal data Article 44: General principle for transfers Article 45: Transfers on the basis of an adequacy decision Article 46: Transfers subject to appropriate safeguards Article 47: Binding corporate rules Article 48: Transfers or disclosures not authorised by Union law Article 49: Derogations for specific situations Article 50: International cooperation for the protection of personal data Chapter 6: Supervisory authorities Article 51: Supervisory authority Article 52: Independence Article 53: General conditions for the members of the supervisory authority Article 54: Rules on the establishment of the supervisory authority Article 55: Competence Article 56: Competence of the lead supervisory authority Article 57: Tasks Article 58: Powers Article 59: Activity reports Chapter 7: Cooperation and consistency Article 60: Cooperation between the lead supervisory authority and the other supervisory authorities concerned Article 61: Mutual assistance Article 62: Joint operations of supervisory authorities Article 63: Consistency mechanism Article 64: Opinion of the Board Article 65: Dispute resolution by the Board Article 66: Urgency procedure Article 67: Exchange of information Article 68: European Data Protection Board Article 69: Independence Article 70: Tasks of the Board Article 71: Reports Article 72: Procedure Article 73: Chair Article 74: Tasks of the Chair Article 75: Secretariat Article 76: Confidentiality Chapter 8: Remedies, liability and penalties Article 77: Right to lodge a complaint with a supervisory authority Article 78: Right to an effective judicial remedy against a supervisory authority Article 79: Right to an effective judicial remedy against a controller or processor Article 80: Representation of data subjects Article 81: Suspension of proceedings Article 82: Right to compensation and liability Article 83: General conditions for imposing administrative fines Article 84: Penalties Chapter 9: Specific processing situations Article 85: Processing and freedom of expression and information Article 86: Processing and public access to official documents Article 87: Processing of the national identification number Article 88: Processing in the context of employment Article 89: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes Article 90: Obligations of secrecy Article 91: Existing data protection rules of churches and religious associations Chapter 10: Delegated and implementing acts Article 92: Exercise of the delegation Article 93: Committee procedure Chapter 11: Final provisions Article 94: Repeal of Directive 95: /46: /EC Article 95: Relationship with Directive 20: 02: /58: /EC Article 96: Relationship with previously concluded Agreements Article 97: Commission reports Article 98: Review of other Union legal acts on data protection Article 99: Entry into force and application

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

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.

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)."

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).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".

(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".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.

(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

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