Indian laws such as the Juvenile Justice Act, the Evidence Act, and child labour laws, recognise that children are at different levels of maturity in the 13-18 age group, so to have a blanket age of 18 is not something that is very good for Indian children, Aparajita Bharti, co-founder of Young Leaders for Active Citizenship, an organisation that works with young people across 10 Indian cities, said.
This came as a part of MediaNama’s discussion, hosted with the support of Facebook and Google, on how the Personal Data Protection Bill, 2019 deals with children’s privacy and data rights. The Bill proposes that any entity that collects or processes children’s data take consent from their parent or guardian before doing so.
Blanket age of consent of 18 years
A threshold of eighteen seems unreasonable, given the amount of opportunity that is on the Internet for young people to explore themselves and discover what they want to do later in life, YLAC’s Bharti said.
- Contract Act’s influence: The idea to have 18 as the blanket age of consent possibly came from the Indian Contract Act, Pallavi Bedi, Senior Policy Officer at the Centre for Internet and Society said. However, there are clear issues with that: “There’s a difference between entering into a valid contract and the point of view of children being on the Internet. You would have a child who is 12 years old or 14 years old, and wants to obviously look at YouTube videos or even Facebook,” Bedi said.
Even in case of kids’ parents or guardians, they may always not understand what they’re consenting to, on behalf of a child, she added. Also, allowing parents to take decisions on behalf of their kids may also take away agency from a child — “many of the children who we work with, are struggling with their sexual orientation, and have started exploring it around the age of 15 or 16, and they may not want their parents to know about it right away,” Bharti added.
- Requiring consent versus ensuring privacy: This problem can compound, especially for girls in homes which just have one smartphone, Bedi said. “A girl child in that household may have less access to that phone. When you’re depending on a parent giving consent in a patriarchal society like India, it will have an impact on privacy of women,” Bedi said. If a girl child wants to learn more about reproductive rights for instance, or has classes about that, Bedi said, “just depending on parents’ consent will not protect women’s privacy”.
“So are we actually disenfranchising Indian children against accessing information that is useful for them and letting advertisers or whoever is trying to get to them to give them useful information? But in the garb of protection, I think there needs to be a balance between the two,” said Bedi.
- Meaningful consent: What, for children, is meaningful consent? Bedi pointed out that children, like anyone else, have to know what they’re getting into online when they are using the internet and signing up for a service. Additionally, Bedi said that children must also be able to withdraw consent they granted earlier.
Internet literacy is also not the same across the board, which makes the idea of having a blanket age of consent for kids even more problematic, Bharti suggested. Access to telecommunication services plays an important role in this, she said, adding that in many cases, a 13-year-old might understand consent better than an 18-year-old.
- Empowering children: A blanket age of consent also puts children in a “bubble”, said Bedi. “It is more important to empower kids to be able to guard themselves against some information that is harmful to them or when they think they are being targeted unfairly rather than completely getting them into a bubble,” she said.
She also said that to use platforms like YouTube, the age of consent is less than 18, EU’s GDPR puts the age of consent at 16 years, in the UK, it is 13 years, and Australia doesn’t have any such concept. “So basically you’re saying that a child who is 12 has the same capability as a child who is four or 16 or 18,” Bedi added.
- Hampers kids’ self-development: Young people are using the internet for their own social mobility, development, and for engaging with things that they may not have access to, Bharti said. “So, for example, we have seen that children from tier-three cities especially are so keen to take on online learning opportunities because they may not have the same kind of exposure in their own cities,” said Bharti. “These kids want to go online, be a part of communities, to understand and connect with people who are having similar experiences,” she added.
A lot of influencers on social media are essentially teenagers, who end up getting endorsement deals, said Puneeth Nagaraj of L&L Partners. “Imagine if they have to seek consent from parents for that. I look at this as a limitation on access,” he added.
Siddharth Pillai of Aarambh India pointed out, “Age in India is not the only factor that determines whether a child will give consent or not. There are several other factors.” He pointed out that access can inform behaviour as well: a 15 year old who spends more time on the internet than a seventeen year old may be able to identify that targeted ads are seeking them out based on their behaviour, and may therefore be better positioned to give informed consent, or at least instinctually stay away from risky services that might compromise their privacy. Access also tends to be sharply favoured toward boys, who tend to have more unrestricted access, Pillai added.
Lawyer Jai Dehadrai added, “Given India’s socio-economic situation, some families, which might not have a nuanced understanding of the harms, might be at a disadvantage.”
Alternatives to blanket age of consent
The UK has just come out with an age appropriate code, under which they have about 15 standards that companies have to comply with, Bedi said, as an example of an alternate approach to having a blanket age of consent. “For instance, under the code, there has to be privacy by default, platforms will have to clearly tell kids why their data is collected in a way that they understand, companies can’t employ nudge techniques to cajole children into diluting their privacy settings”, she added.
In India’s case, the Data Protection Authority could possibly come out with age appropriate codes, and the standards that various platforms have to adhere to, Bedi added.
Having a graded approach to consent is also a possible alternative, Bedi said. “Children under the age of 14 will have to require parental consent, and those between 14-16 years, don’t need any,” she said, while explaining how a graded consent approach might look like.
- Different ages, different needs: Grading age of consent allows data fiduciaries to recognise that different age groups have different levels of development as well as different levels of recognising problems. Evolving standards from the US and UK, like COPPA, indicate the need for equivalent efforts, Bedi said.
*With inputs from Aroon Deep
Update (December 18): A previous version of this article characterised Young Leaders for Active Citizenship as an NGO. We regret the error.