Children And Consent Under The Data Protection Act: A Study In Evolution

After gaining presidential approval, the Digital Personal Data Protection Act, 2023 (the “Act”) was finally passed by both chambers of Parliament and published in the official gazette. The Puttaswamy Judgements and subsequent rulings by other constitutional courts by the Supreme Court of India, which delineated the boundaries of the right to privacy, are to be legislatively expressed by the Act. The tenet—which has now essentially solidified—is that an individual’s liberty is intrinsically tied to their control over their personal information. Therefore, in a system that is still firmly founded on permission, the answers to the problems of what constitutes a kid, who may provide consent for the collection of their personal data, and what can and cannot be done with it will be crucial to their future position as “Digital Nagariks.” As we continue our series on the Act, we now look at how children are treated under it and some worldwide comparisons.[1]

Children And Consent

The age of majority was set at eighteen years old in the draught Digital Personal Data Protection Bill, 2022, which was made available for public input on November 18, 2022. [2]The bill placed strong prohibitions on a number of broadly defined acts. Over 20,000 consultation comments and many in-person discussions later, it has become clear that this stance need considerable nuancing. In today’s digital economy, where youth consume more and more services ranging from entertainment to education, and where a growing number of young people use the internet, it is not only practical but also essential to offer goods and services to children and, when necessary, make sure that specific kinds of content is directed towards them. [3]

This is even more true for other quasi-commercial and non-commercial processing activities such as age-gating, screening adult content and interactions, and providing minors with mental health and protective services. India has always treated all people under the age of majority as minors, with certain exceptions. Since these people are thought to be incapable of contracting, most forms of engagement with them rely on parental or guardian agreement. Although there are certain exceptions, such as when they enter into contracts or partnerships for their benefit, none of them—nor one-time parental consent—form a strong or even useful way to allow interaction between interactive platforms and people under the age of 18.

[Image Sources: Shutterstock]

Data protection

Like the Draught, the Act establishes that anybody under the age of 18 is considered a child. Graded methods are provided by international regulations like the California Consumer Privacy Act and the General Data Protection Regulation in Europe. Like the Draught, the Act also mandates that permission be obtained from a parent or legal guardian (henceforth referred to as the “Parent”) for any processing of a child’s personal data in a verifiable way that will be outlined by regulations. The Act, however, makes it more difficult for Data Fiduciaries to handle the personal data of a person with a disability for whom a guardian has been appointed. It mandates that Data Fiduciaries seek the verified approval of the parent or legal guardian before processing any such data.

Furthermore, The Act Grants The Government The Following Freedom In A Move That Is Much Appreciated

An exemption for processing child personal data by certain classes of Data Fiduciaries, or for specific purposes, each in accordance with specific conditions (hereinafter the “Class Exemption”), exists. A younger age at which required parental authorization for this type of processing is is no longer necessary when a Data Fiduciary duty certifies that the interpreting of children’s private data is independently safe; this is referred to as the “Being secure Dilution.”

An Intricate Harmony

Similar to the Draught, the Act maintains the notion that a child’s parents and legal guardians will also serve as “data principals.” Although it is customary to require parental consent before using a minor’s personal data, giving parents the option to fully replace their child’s autonomy with their own poses special challenges, especially if disputes arise between parents and kids over permission, using Data Principal rights, or filing grievances[4]. The Data Fiduciary may decide to rely on the broadly defined definition of “processing” and the requirement that all processing of children’s personal data require “verifiable parental consent” in order to deny such requests, even though the new language may allow a child to attempt to exercise rights concurrently with their parent. Furthermore, given the Act’s age of majority and the disregard for capacity that permeates even India’s existing criminal laws, the Act raises the fascinating question of what rights, if any, minors have over their personal data other than their parents’. It may be helpful to have some advice on this via regulation, DPB rulings, or FAQs.

Limitations On The Procedures

In the draught, it was suggested that Data Fiduciaries should not treat personal data in a way that might endanger minors. The draught defined damage as specifically causing physical injury or distortion, identity theft, harassment, preventing any legal benefit, or causing a substantial loss. Data Fiduciaries are not allowed to do any processing “that is likely to cause any detrimental effect on the well-being of a child” under the Act, which has eliminated the concept of “harm.” As a result, Data Fiduciaries will need to really behave in a fiduciary position towards minors and foresee any negative consequences that could arise from processing them.

The Act also forbids “targeted advertising directed at children” and “tracking or behavioral monitoring of children.” Once again, given the absence of precise definitions for these words, these limitations may also apply to age-gating systems and content screening systems that guarantee suitable advertising. Thankfully, the Act permits the extension of the Safety Dilution and Class Exemption to this limitation, in contrast to the Draught. In addition to a clear exemption from these restrictions for use cases that are obviously protective of children (such as age gating and intelligent age verification), it is anticipated that a Security Dilution will be established that will enable services and advertising (such as age-appropriate educational or entertainment content) to be directed towards children in their teens.[5]

 The Act’s provisions, which specify the types of Data Fiduciaries and the purposes exempt from the need for obtaining verifiable permission and the ban on tracking, behavioral monitoring, and profiling, must be strictly adhered to in light of the aforementioned. The precise fine of up to two hundred crore rupees for failure to comply with new requirements for minors has been kept, same as in the Draught. Therefore, it is essential that there be unambiguous delegated law regarding children’s personal data that clarifies legislative purpose and gives companies assurances about compliance. All things considered, the Act’s stance is a positive step for industries where children make up a large portion of the clientele and for businesses trying to sell to youngsters. Enabling exemptions for certain classes and purposes, together with a reduction in the consent age for particular types of verifiably safe processing, will make it possible for companies to interact with children in a way that is both safe and protective of their interests.

Conclusion

In summary, the research on minors or their permission within the Data Protection Act sheds insight on how their rights to privacy are changing in the digital era. It emphasizes the significance of using a more sophisticated & appropriate for your age strategy to getting minors’ permission considering their developing cognitive capacities. It is critical to find an equilibrium between protecting children’s privacy and encouraging them to participate actively in the world of digital media as tech keeps affecting how we live. This research emphasizes how crucial it is to have continuing legal & moral conversations to modify rules in order to protect children’s rights but keep up with the rapidly evolving digital world.

Author: Lavanya Singh, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

References

  • CYRIL SHROFF, ARJUN GOSWAMI, ARUN PRABHU, ANIRBAN MOHAPATRA, ARPITA SENGUPTA, MAHIM SHARMA, ANOUSHKA SONI, SABREEN HUSSAIN & SOUMYA TIWARI, “Children and Consent under the Data Protection Act: A Study in Evolution”, Cyril AmarchandMangaldas, August 22, 2023. https://corporate.cyrilamarchandblogs.com/2023/08/children-and-consent-under-the-data-protection-act-a-study-in-evolution/
  • SOUMYARENDRA BARIK, “Age of consent for data protection: How the definition of a child has changed over the years“, The Indian Express, July 17, 2023. https://indianexpress.com/article/explained/explained-sci-tech/age-of-consent-data-protection-definition-of-a-child-8836943/
  • DH WEB DESK, “Data protection age of consent: How India and the world’s laws defines who is a child”, Deccan Hearld, 18 July 2023. https://www.deccanherald.com/india/data-protection-age-of-consent-how-india-and-the-worlds-laws-defines-who-is-a-child-1237945.html
  • VIKRAM JEET SINGH , KALINDHI BHATIA AND PRASHANT DAGA, “Privacy Week Series: Status Of Children’s Data Under The Indian Privacy Regime”, 31st Jan 2023. https://www.mondaq.com/india/data-protection/1276834/privacy-week-series-status-of-childrens-data-under-the-indian-privacy-regime
  • VASUNDHARA SHANKAR, “Date privacy: Kid you not”, Business Line, June 19, 2022. https://www.thehindubusinessline.com/business-laws/date-privacy-kid-you-not/article65538305.ece

[1] CYRIL SHROFF, ARJUN GOSWAMI, ARUN PRABHU, ANIRBAN MOHAPATRA, ARPITA SENGUPTA, MAHIM SHARMA, ANOUSHKA SONI, SABREEN HUSSAIN & SOUMYA TIWARI, “Children and Consent under the Data Protection Act: A Study in Evolution”, Cyril AmarchandMangaldas, August 22, 2023. https://corporate.cyrilamarchandblogs.com/2023/08/children-and-consent-under-the-data-protection-act-a-study-in-evolution/

[2] SOUMYARENDRA BARIK, “Age of consent for data protection: How the definition of a child has changed over the years”, The Indian Express, July 17, 2023. https://indianexpress.com/article/explained/explained-sci-tech/age-of-consent-data-protection-definition-of-a-child-8836943/

[3] DH WEB DESK, “Data protection age of consent: How India and the world’s laws defines who is a child”, Deccan Hearld, 18 July 2023. https://www.deccanherald.com/india/data-protection-age-of-consent-how-india-and-the-worlds-laws-defines-who-is-a-child-1237945.html

[4] VIKRAM JEET SINGH , KALINDHI BHATIA AND PRASHANT DAGA, “Privacy Week Series: Status Of Children’s Data Under The Indian Privacy Regime”, 31st Jan 2023. https://www.mondaq.com/india/data-protection/1276834/privacy-week-series-status-of-childrens-data-under-the-indian-privacy-regime

[5] VASUNDHARA SHANKAR, “Date privacy: Kid you not”, Business Line, June 19, 2022. https://www.thehindubusinessline.com/business-laws/date-privacy-kid-you-not/article65538305.ece

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