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Data protection working party weighs in

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Companies processing children's data may need explicit consent directly from a child to continue using it once that child reaches maturity, Europe's privacy officials have said. The child may also revoke consent given earlier by a parent or guardian.

The Article 29 Working Party, a committee of European countries' data protection officials, has said when a child becomes mature enough to make their own decisions anyone processing their sensitive data must ensure they have the child's permission and not just that of the child's representative.

"Sensitive personal data" is defined in data protection legislation and includes information about someone's ethnic origin, religious beliefs, health, and more.

The Working Party has outlined the requirement in its guide (pdf) to children's data protection. It said data protection policies for children must be sensitive to the point at which a child is mature enough to make his or her own decisions, and must respect those.

"If the processing of a child's data began with the consent of their representative, the child concerned may, on attaining majority, revoke the consent," said the guidance. "But if he wishes the processing to continue, it seems that the data subject need give explicit consent wherever this is required.

"For example, if a representative has given explicit consent to the inclusion of his child in a clinical trial, then upon attaining majority, the controller must make sure he still has a valid basis to process the personal data of the data subject. He must in particular consider obtaining the explicit consent of the data subject himself in order for the trial to continue, because sensitive data are involved," said the Working Party.

The Working Party also warned of the dangers posed to children's privacy by new digital recording technologies such as the video recording features on many models of mobile phones. It said schools must take responsibility for making children aware of one another's rights to privacy.

"Schools should warn their students that unrestrained circulation of video recordings, audio recordings and digital pictures can result in serious infringements of the data subjects’ right to privacy and personal data protection," it said.

The guidance also said any organisation that holds data on a child must be more than usually vigilant about deleting that data because it will lose its relevance more quickly than data about an adult.

"Because children are developing, the data relating to them change, and can quickly become outdated and irrelevant to the original purpose of collection. Data should not be kept after this happens," said the guidance.

The Working Party also advised that schools be particularly careful about collecting data on children, and said that children should be able to opt out of biometric access systems which are increasingly used in schools to control access to the school. It should be simple for children or their representatives to object and be issued with an access card instead, it said.

The guidance also warned schools about their use of websites. It said private information posted online should be protected, and that schools should exercise caution when using photographs of pupils, obtaining their permission first.

Copyright © 2008, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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