GDPR Age of Consent Isn't Child's Play

Posted by

Martin Schofield

on 09 Feb 2022

GDPR brought with it new rules to better protect personal data. Not only to protect adults privacy but also to guard children against exploitation. So what is the age of consent?

GDPR Age of Consent Isn't Child’s Play

As adults, we can make informed decisions about collecting or processing our data. But what about children? At what age are they expected to be able to make their own decisions? And is this reasonable or realistic?

What is the GDPR age of consent?

Under GDPR Article 8, the age of consent, i.e. when a child is required or able to give their consent to process their data, is 16. However, member states can allocate their age of consent, with a cap at 13 years of age.

In the UK, the age of consent is 13, so the lowest age that the GDPR will allow.

Is that low enough? Or too high?

The purpose of consent is to draw a line in the sand showing from which age onwards children can provide their consent for processing their personal data.

Generally, we tend to think about children's data used for social media purposes, such as Instagram, which is aimed at those 13 or more years old and even has an online form to enable the reporting of account users who are younger than that.

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How does the GDPR age of consent differ in the EU?

Many EU member countries share the same age of consent as the UK. Only one or two older, and surprisingly, some nations have no provisions.

  • Austria - 14 years old
  • Belgium - 13 years old
  • Czech Republic - 15 years old
  • Denmark - 13 years old
  • Finland - 13 years old
  • France - 15 years old (or younger with parental consent)
  • Germany - None
  • Hungary - None
  • Ireland - 16 years old
  • Italy - 14 years old
  • Netherlands - 16 years old
  • Poland - None
  • Slovakia - 16 years old
  • Spain - 14 years old
  • Sweden - 13 years old
  • United Kingdom - 13 years old

You can stay updated on each country with the handy Two Birds GDPR Tracker

Are children unwittingly putting their online security at risk?

Despite the regulations, the UK's Children's Commissioner says that children unwittingly give away rights to their private data and put their online security at risk.

A survey undertaken by the Commissioner's Growing Up Digital taskforce revealed that nearly 50% of 8 to 11 year old's agreed to vague terms and conditions offered by social media firms.

None of the children surveyed fully understood the terms and conditions of Instagram, which is used by more than half of 12 to 15 years and 48% of 8 to 11-year-olds. Only half of these 8 to 11-year-olds can even read the terms, which run into more than 5,000 words over 17 pages of text. However, Instagram is aimed at ages 13+ and has a reporting facility for younger users.

According to Ofcom, 12 to 15 year old's spend more than 20 hours a week online, and 70% of them have a social media profile. Interestingly, Ofcom also reports that even 3 and 4-year-olds spend 8 ¼ hours a week online - that's quite a crazy thought!

As with most adults, if I want to know anything about social media, I'll ask a child in my family or circle of friends. There are no greater social media experts than children, but compliance experts can tell from these statistics that they are not.

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Can we expect children to make informed choices about their personal data rights?

That said, common sense should tell us that children, even at the age of 13, cannot reasonably be expected to make informed choices about their rights relating to personal data.

The world of data protection is a minefield filled with legal and compliance professionals who can debate the topics and intricacies of such for hours on end. Yet under GDPR, we allow children as young as 13 to make decisions regarding their data protection.

The need for parental intervention

Clearly, there is still a need for parental intervention. Parents need to provide some guidance to their children at least. Interestingly enough, I am sure that the parents do so regarding financial matters, like choosing whether to provide or withhold their consent on child bank accounts and trust funds.

Similarly, it will be interesting to see in which direction financial services firms move in regarding consenting children. Whether children consent to receive marketing and promotional material or seek to restrict or withdraw consent, they are likely to lack any real understanding of the impact and consequences of such instructions.

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