Question 116 - CIPP-E discussion

Under the GDPR, the processing of personal data of a child on the basis of consent requires the consent of the holder of parental responsibility over the child, unless the child is at least 16 years old or the applicable national law provides for a lower age (not below 13 years). However, there are some situations where the processing of personal data of a child without parental consent may be justified by other lawful grounds, such as the performance of a contract, the compliance with a legal obligation, the protection of vital interests, the performance of a task carried out in the public interest, or the legitimate interests of the controller or a third party. One of these situations is when the processing is necessary for providing preventive or counselling services to the child, especially in the context of information society services. This is recognised by Recital 38 of the GDPR, which states that:

''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.''

Therefore, the processing of personal data of a child without parental consent may be lawful if it is necessary for providing preventive or counselling services to the child, such as health, education, social or legal services, that are offered directly to the child and that aim to protect the child's well-being, safety, development or rights. This may include, for example, online counselling platforms, sexual health advice services, anti-bullying or mental health support services, or child protection helplines. In such cases, the controller should ensure that the processing is fair, transparent, proportionate and respectful of the child's best interests, and that appropriate safeguards are in place to protect the child's personal data and rights.

The other options are not likely to justify the processing of personal data of a child without parental consent, as they do not meet the criteria of necessity, proportionality or legitimacy. The processing of personal data of a child for market research purposes is not necessary for the performance of a contract, the compliance with a legal obligation, the protection of vital interests, the performance of a task carried out in the public interest, or the legitimate interests of the controller or a third party, and may pose significant risks to the child's privacy and autonomy. Therefore, such processing requires the consent of the holder of parental responsibility over the child, unless the child is old enough to give their own consent. The provision of materials purely for educational use to a child may not require the processing of personal data of the child at all, or may only require the processing of minimal personal data, such as the child's name or email address. In such cases, the processing may be based on the consent of the child, if the child is old enough to understand the implications of their consent, or on the legitimate interests of the controller, if the processing is necessary for the provision of the educational materials and does not override the interests or rights of the child. However, the controller should still inform the child and the holder of parental responsibility about the processing and provide them with the opportunity to object or withdraw their consent. The existence of a legitimate business interest does not automatically justify the processing of personal data of a child without parental consent, as the controller must also consider the impact of the processing on the rights and freedoms of the child, and whether the processing is necessary and proportionate for the pursuit of that interest. Moreover, the controller must balance the legitimate business interest against the interests or rights of the child, and ensure that the processing does not cause any harm or disadvantage to the child. If the processing involves the use of personal data of a child for the purposes of marketing or creating personality or user profiles, the controller must obtain the consent of the holder of parental responsibility over the child, unless the child is old enough to give their own consent, as these purposes pose a high risk to the child's privacy and autonomy.Reference:GDPR Article 6,GDPR Article 8,GDPR Recital 38,Children and the UK GDPR | ICO,Guidelines on consent under Regulation 2016/679 - European Data Protection Board