Data Consent and Child Rights in Nigeria
By Okuyemi Anuoluwapo
CONCEPT OF CONSENT
According to Justice Story, ‘Consent is an act of reason, accompanied by deliberations, the mind weighing, as in a balance the good or evil on each side.’ In understanding Consent, it is imperative that the choice, acceptance, and allowance elements are taken into consideration, because consent is involves choice to accept and allow certain externalities . In some cases, consent is what transposes an ordinary illegal, wrong or acceptable act to a permissible act. E.g for children, consenting to go to school and not being allowed to leave will not result in false imprisonment as they are deemed to have consented through their parent or guardians.
The law recognizes that children are developmentally not able to make decisions about something. As such various subsect of the law require a particular age before a child can make decisions, under the Child Rights Act, it is an offence of statutory rape to sleep with a child. A child is similarly defined under the Act as any person below the age of 18. This points unequivocally to the fact that even when consent is given by a child to such sexual activity, such is still classified as rape because the child is deemed to not being able to consent to such activity.
DATA CONSENT FOR CHILDREN
According to the NDPR, Consent means any freely given, specific, informed and unambiguous indication of the Data Subject’s wishes by which he or she through a statement or a clear affirmative action, signifies agreement to the processing of Personal Data relating to him or her.
The age of Data consent is questionable. Adults struggle with fully understating the effect of consent to the processing, storage, and distribution of their data. Children lack the developmental awareness to understand the implications of giving their consents, they do not fully grasp the full extent of their consent, as such the age should be left at 18 as proscribed by the Child Rights Act.
The age of consent for the NDPR is consistent with the US Children’s Online Privacy Protection Act off 1998. The relationship between data collectors and children is unequivocally a Fiduciary relationship, utmost discretion and confidentiality must be taken in collection of children’s data.
SOUNDCLOUD — “ SoundCloud is not intended for use by children. Anyone under the age of 16 in the EEA and UK, or 13 in the United States and the rest of the world, is not permitted to use the platform and must not attempt to register an account or submit any personal data to us. We do not knowingly collect any personal data from any person who is under the age of 16 or 13, as applicable, we as the case may be, or allow them to register an account. If it comes to our the room that we have collected personal data from a person under the age of 16 or 13, as applicable, we will delete this personal data as quickly as possible. If you have reason to believe that we many have collected any such personal data, please notify us immediately at firstname.lastname@example.org”
Neil Richards and Woodrow Hartcog, ‘The pathologies f Digital consent , Washington University Law Review 2019
S31 Child Rights Act
National Data Protection Regulation 2019 Art 1.3