Simone Diederich will write her thesis on "sharenting," an amalgamation of parenting and sharing. What may a parent of a child share, and what does the child have to say about it? The following was created in part in discussion with her.
In the Wbp, article 5 was about parental consent (legal representative) for data subjects under 16. The fascinating thing about that provision is that if, for example, a school wants to post a photo of a child on the Internet, parental consent is required, but then this photo must be removed again if the child of, say 6 years old, withdraws that consent. See the text of paragraph 2.
Chapter 1. General Provisions
Article 5
1.
If the person concerned is a minor and has not yet reached the age of sixteen years, or has been placed under guardianship, or a mentorship has been established for the benefit of the person concerned, the consent of the person concerned shall be required instead of that of his/her legal representative.
2.
A consent may be withdrawn by the person concerned or his/her legal representative at any time.
Although that is really what it says, there is something crazy about it. Withdrawal is a legal act and the minor is incapacitated. There are exceptions (e.g. buying candy) but then it is required that the buying is done with parental consent. That consent seems to be interpreted privately afterwards. So a child can perform legal acts, but the parent always has the possibility to annul the legal act.
So in the case of the photo on the website, you could have what is called a live loop in programming: goes on endlessly. Parent consents, child withdraws, parent consents, child withdraws. The question is what happened to children aged 16-18 under the Wbp. There is nothing about that in the Wbp, but they are still incapacitated.
In the AVG the regulation is more limited, Art. 8 only deals with consent in information society services. The Dutch legislator didn't quite realize that something was changing, because at uAVG explanation it says
"The Wbp already used the age limit of 16, and there is no reason to make a different consideration here. For this reason, the implementing law does not include a different age limit. For the sake of completeness, it should be noted that this only relates to processing of data based on consent."
All true, but this leaves nothing at all regulated about children outside of information society services. What about now?
The above explanation by the legislator concerned the earlier version of uAVG, in the final uAVG, Art. 5 has been extended to include children (initially it only concerned guardianships). The withdrawal of consent is also no longer possible by the data subject (the child), but only by the legal representative!
I assume that children up to age 18 require parental consent for processing, or at least, that parents can withdraw any consent given by a child.
By Art. 5(1) uAVG, there is again a separate category for children up to 16 years of age, where the question then is whether the consent should be interpreted in a property law sense, that children up to 16 may give consent but parents can revoke it. Between 16-18 it will only be through property law/incapacity.
One hopes and expects that children and parents will work things out between themselves, but legally it seems to be a not really worked out problem, this confluence between general property law and data protection law.
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This article can also be found in the AVG file
