Authors: Nikhil Iyer and Aparajita Bharti
Published: March 08, 2021 in the Hindu Business Line

India’s privacy law must balance the rights of children with online safety

The Joint Parliamentary Committee on the Personal Data Protection (PDP) Bill, 2019, is expected to submit its report soon. Among other things, observers will keenly follow the Committee’s discussion around children’s personal data. Currently, the Bill imposes a blanket requirement for parental consent for processing the personal data of anyone below the age of 18. In effect, children’s access to online social media, ed-tech platforms, forums for personal interest and development, gaming and so on will be governed by this provision.

While the necessity to protect the interests of children online is a foregone conclusion, the challenge is to do so while respecting their autonomy. The blanket provision in the PDP Bill assumes similar maturity for all children under 18. The Bill inks them as incapable of understanding the risks, benefits and other consequences associated with their online activities.

In contrast, in the offline world, the law variously acknowledges that maturity changes over time. Under India’s criminal law, those below age 12 are deemed incapable of giving informed consent, whereas the maturity of those between ages 12 and 18 is decided by a court of law. Even the laws on child labour allow children under 14 to work autonomously in non-hazardous industries. However, according to the PDP Bill, the same children cannot sign up for online jobs without parental consent. Even a rigorous law such as the Juvenile Justice Act now recognises the difference in maturity among teenagers in different age groups.

This dichotomy between the offline and the online world is especially problematic given the number of Indian teenagers on the internet today. India has one of the largest numbers of active internet users anywhere in the world. Out of an estimated 504 million internet users, nearly one-third are aged under 19. As per the Annual Status on Education Report (ASER) 2020, more than one-third of all schoolchildren are pursuing digital education, either through online classes or recorded videos. Given the ubiquitous reliance on the internet through the pandemic for education, more students have likely come online in the past year.

The implications of these trends on the PDP Bill’s mandate are worth evaluating. To consent on behalf of the child, parents need to be aware of all online activities that the child engages in, even as the child may be digitally more literate and tech-savvy than them. This problem is exacerbated in families of children who are first-generation learners. There is also a huge risk of a chilling effect as the requirement of parental consent inhibits the ability of the child to use the internet as a medium of ‘self-expression, growth and education’. Children are likelier to worry about their right to privacy being infringed by their parents or peers, than by the State or commercial actors.

This is especially so as the child seeks to find an outlet for aspects of their personality that do not find an immediate audience due to social taboos. These may be on questions of sexual orientation, religion and other sensitive issues.

Further, the blanket provision may put Indian children at a comparative disadvantage as compared to their peers in other countries. In the UK and the US, parental consent is needed for those below age 13, while in China this threshold is at age 14. In the EU, this threshold is at age 16, with an option for member states to reduce it to age 13.

Adolescents in these countries will be freely able to use the internet to learn about opportunities, socialise, hone their skills and so on, while those in India will be singularly reliant on their parents to facilitate this. It is highly unlikely that all parents have the ability to fulfil this role proactively.

Instead of strict age-gating provisions, we must update our school curriculum to equip children to keep themselves safe online. One’s relationship with technology is one of themost inalienable aspects of our life today, therefore at every age, children, even those below the age of 13 must be exposed to the potential harms online. We should not only make them aware about the obvious harms on the internet such as phishing, identity or data theft, but also expose them to technology-enabled conundrums that we are dealing with as a society today, such as echo chambers, fake news and the risk of profiling for political gains. Just as we teach students good touch and bad touch to defend themselves in the physical world, we must equip them to make their decisions in the online space.

The question of how children’s maturity could be ascertained and parental consent be verified is gaining traction in other countries. In India, too, the blanket requirement for parental consent for those aged below 18 years must make way for a graded approach along with a comprehensive digital literacy curriculum. In adopting such an approach, we will bring India’s children on a parwith their global peers, and account for internet-based opportunities for their development.