We now know that once the data protection reform package is implemented the ‘age of consent’ for data purposes is (drum roll): whatever date between 13 and 16 years of age a particular Member State thinks appropriate. Oh. Another mess. 13 was a random US-compliant and unsupported figure but made some sort of practical sense; 16 was just plain daft.
But the UK cannot really get too smug about this mess because we have plenty of age-related messes of our own. What’s the right age to decide that you want to get married, have sex, enter a contract of training, be employed, drink alcohol, buy alcohol, smoke, buy a knife, vote, join the army, travel abroad alone, buy a lottery ticket, seek contraceptive advice, be left alone for an hour, be left alone for the night, etc, etc. Head spinning yet? Does any of it make sense? And I haven’t even mentioned the online access to pornography issue where the government position (no access until 18) seems somewhat at odds with almost everyone’s experience of real life.
When the Law Commission last consulted on topics worthy of its attention, I suggested that the whole range of age-related issues needed a thorough examination. We need research and debate that comfortably trumps the ‘when I was a teenager’ and ‘my son says’ exchanges that we see too often. Sadly, the Law Commission didn’t take up my suggestion and we still have a mess. I hope they will take up the issue someday.
But the recent exchanges about the data protection reform package and the uncertainties about the right age for giving data consent have made me think that that EU itself is badly in need of a Law Commission-like study. I know that the EU Commission outsources research from time to time and that many Commission departments would see themselves as equipped for a role in examining the call for law reform. But the EU Commission is itself highly politicised and, with the best will in the world, research will tend to be skewed by a brief or expectation. An independent body, with the same level of status as, say, the EDPS, might be a useful addition to the EU armoury.
In the meantime, can I at least hope (against expectation) that the compromise mess on data consent of teenagers is just a short-term fix because of the (false) deadline for agreeing the main text? Surely, after further reflection and once they have time to do some research, Member States will all agree the same age. I can hope.
