THERE HAS BEEN much discussion in recent days about the digital age of consent.
Last week, the Cabinet agreed this age should be 13 years – the lower end of the 13-16 age range set out under European law.
The digital age of consent refers to the age from which it is legal for data controllers to hold data gathered on children and teenagers. For children under the age of 13, parental consent will be required.
It could be argued that 13 has been the de facto age of digital consent for some time in Ireland – it’s the minimum age for setting up a Facebook account, for example. An official age has to be set before the EU General Data Protection Regulation (GDPR) comes into effect on 25 May 2018.
Of course, a person could lie about their age to set up a social media account. Again using Facebook as an example, the website has a mechanism in place for people to report profiles they believe belong to a person under the age of 13.
Every generation of young people will likely be more tech savvy than the next, and many children (often younger than 13) have their own smartphone or tablet device.
There are certain measures parents or guardians can take to protect their children online, such as installing apps that control the sites they can access. However, some people don’t think this goes far enough in stopping young people potentially seeing inappropriate content such as pornography or violence.
Critics of setting the digital age of consent at the lower end of the scale have pointed out that children mature at different ages and being tech savvy doesn’t do much in practical terms to protect young people online.
‘Realistic view’
The Ombudsman for Children, Dr Niall Muldoon, has welcomed the move to set the digital age of consent at 13.
Muldoon said doing so “takes a more realistic view of children and young people’s internet use, and of the integral role that the online environment plays in their lives”.
Choosing 13 as the digital age of consent is in keeping with international children’s rights standards as it allows for the balancing of the different rights that children have. It also acknowledges the opportunities, as well the risks that the online environment presents to children and young people.
Muldoon said it’s “vital” children are educated in order “to develop their digital literacy and awareness”.
He added that protecting children while they are online presents “major challenges to parents, governments, businesses and society in general” but “there is no turning back the clock”.
In a submission about data protection legislation to the Oireachtas justice committee in June, the Ombudsman for Children’s Office cited a 2015 DIT study that found nine in 10 15 and 16-year-olds in Ireland have a profile on a social networking site.
The research also found that just under 40% of 11 and 12-year-olds have a social networking profile, despite age restrictions. This figures jumps to about 75% for 13 and 14-year-olds.
The right to be forgotten
Earlier this month the special rapporteur for child protection, Dr Geoffrey Shannon, echoed Muldoon’s sentiments when appearing before the same committee. The Children’s Rights Alliance also backs the age of digital consent being set at 13.
Shannon spoke to the committee about a number of issues, including the fact that blocking certain sites could prevent children from accessing “much needed” services such as online counselling or advice (something they may wish to access without telling others), and children’s “right to be forgotten”.
In terms of the latter, Shannon said: “We all know that young people sometimes insert material online that they would regret afterwards. We need to recognise and acknowledge the vulnerability of young people.” He said this issue is not dealt with under current legislation.
Shannon told the committee digital safety is “not about creating a nanny state”, rather “about empowering young people to understand the benefits and downsides of the online world, especially in terms of young people’s exposure to cyberbullying”.
He said legislation must reflect the fact that technology and digital media “play an integral role in the lives of our young people”.
Shannon said that, in setting a digital age of consent, the GDPR also aims to “protect young people from commercial online marketing providers, for instance social media and gaming platforms”.
“The current situation whereby the same data practices are being used to target teenagers as those used to target adults is absolutely unacceptable and needs to be tackled,” he added.
The comments made by Shannon were generally well received by committee members at the time, with TDs and senators agreeing that the views of children themselves should be taken into consideration in this regard. Independent TD Mick Wallace described Shannon’s remarks as “food for thought”, noting that “children live in a different world” to previous generations.
I have a few children and I can barely turn on the computer while they can take it apart and put it back together again. Unless we listen to them we will not understand them.
“People who legislate very often are disconnected from those for whom they are legislating, and that is probably more stark than ever in the case of children. It is crucial that we start to listen to them,” Wallace said.
The dark web
It’s also crucial to listen to parents’ views, something Dr Mary Aiken has argued didn’t happen in the run-up to settling on 13 as the digital age of consent.
Aiken is a cyberpsychologist and academic adviser to the European Cybercrime Centre at Europol. She believes the public consultation period on the digital age of consent, launched by the Department of Justice late last year, would have been known to interest groups and experts in the area but likely went unnoticed by parents.
“I don’t believe that there has been a national debate about the issue that has included parents. I want a thorough public debate on the subject that includes all major stakeholders, most importantly parents,” Aiken tells TheJournal.ie.
Legally, children under the age of 16 in Ireland can’t consent to medical procedures on their own behalf. As this is the case, Aiken finds it unusual to set the digital age of consent at 13.
“If an Irish child cannot make a decision on something that could impact on their physical health, how could they possibly make a decision on something that could impact on their mental health?”
Aiken says the internet is full of dangers, noting that children can easily end up viewing inappropriate content.
Being tech savvy doesn’t offer any protection, it just means children can probably figure out a way to get to places they shouldn’t be. More and more young people are ending up on the deep web. That’s not a good neighbourhood for children.
“If we allow 13-year-old children – and make no mistake, these are children, not young adults – [this access] they will never be more than two clicks away from extreme content.”
Aiken notes that research in the UK has shown a surge in sexual assaults on children by children, stating: “What did we think was going to happen when we pipelined pornography to children?
“Whilst in the UK great progress is being made in terms of age verification and the protection of children online, sadly in Ireland we are moving in the opposite direction and appear to be pandering to the commercial interests of online service providers.”
In terms of the argument that younger people are spending more time online regardless of official age restrictions, making the entire situation too hard to police, Aiken says: “We don’t say with cancer there’s too much of it so we’ll just give up. We don’t say there are too many nightclubs and bars to stop under 18s accessing alcohol so we’ll just give up. Why give up with online?”
‘Blow their minds’
Barry O’Sullivan, a UCC professor and founding director of the Insight Centre for Data Analytics, has been working with Aiken to highlight this issue. The pair are planning to set up information sessions about the topic for parents and recently co-wrote an opinion piece in the Irish Times about their concerns.
O’Sullivan tells TheJournal.ie he thinks the digital age of consent was chosen as 13, at least partly, for the benefit of social media companies.
“Under what basis did they make the decision? Because it would be awkward for social media companies if it was set at 16? Being out of sync with the US would have been a big, big problem,” he says.
O’Sullivan notes that children “can’t consent to anything else at [13], like having sex or drinking alcohol – which is as it should be”.
They’re tech savvy but we don’t allow them to drive cars, for example, just because some of them would be able to. When I was a kid, video recorders were the latest technology, I didn’t have free rein over how I used that. The tech savvy idea is bogus.
“We don’t know who they’re going to be engaging with – we’ve all heard the stories of people presenting themselves as 13 or 14-year-olds, but that’s not who they are.”
O’Sullivan believes many parents will not have heard about the digital age of consent before now, stating: “If you were to say to parents, ‘Your 13-year-old child will be able to access whatever they want online and you’ll have no say’, I think that would kind of blow their minds.”
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