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Subject's code : 26602552
The core content of the subject matter encompasses the study of main rules relating to mail digital issues of minors.
Given that the legal ecosystem of minors is fragmented in a huge amount of rules that address various aspects, it is necessary to devote Module One on Status quo of the Children’s as a data subject to bring the student closer to them. To do so, the best way is to consult these two useful documents in which the European Commission has compiled the acquis on minors: The “EU Acquis and policy documents on the right of the child 2019”, more general than the last titled the “European Strategy for a Compendium of legislation 2022”.
From the long list of rules included in them, it is always necessary to start from the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), which applies from 25 May 2018 (hereinafter, “GDPR”), and the Ley Orgánica 3/2018, de 5 de diciembre, de Protección de Datos Personales y garantía de los derechos digitales, which aims to adapt the domestic rules on this matter (hereinafter, “LOPD”) (https://www.boe.es/eli/es/lo/2018/12/05/3). They are horizontal rules that constitute the basis of the digital space, which other laws in force, legislative proposals, strategies and self and co-regulatory measures (codes), must respect.
Into the laws in force, the three main European Directives regulating the three services of the digital ecosystem, namely Audiovisual, e-commerce and telecommunications, will be studied together with the Spanish laws that transpose them and the main codes of conduct relating to digital minors[1]. Our study will also focus on recently approved laws such as Digital Services Act that shall fully implemented from 17 February 2024 and the Strenghthened Code of Practice on Disinformation 2022.
In addition, the following legislative proposal on Artificial Intelligent, European Digital Identity and ePrivacy, must be identified in this first Module because they will complete the regulation of digital rights studied in Modules two and three.
[1] Main self-regulations in Europe: -Internet and mobile technologies areas: Safer Social Networking Principles for EU 2009, and European Framework for Safer Mobile use by Young Teeneagers and Children 2007, Code of conduct Safer use of mobile phones and services by younger teenagers and children 2008 and Statement of Purpose "A better Place for kids " 2011 and the Principles for the Safer Use of Connected Devices and Online Services by Children and Young People in the EU 2012; Direct and Interactive Marketing area: European Code of Practice for the use of Personal Data in Direct Marketing (FEDMA Code 2002 (2010); Interactive software Products area: Code of Conduct for the European Interactive Software Industry regarding Age rating Labelling, promotion and Advertising of Interactive software products (PEGI Code).
Main Self-regulations in Spain: -General publicity area: Código de Conducta Publicitaria y Código Ético de Comercio Electrónico y Publicidad Interactiva of AUTOCONTROL and AECEM; Specific publicity areas: Código Ético de Publicidad en Cine 2000, Directrices buenas Prácticas Publicidad de Productos software interactivo, Código de Autorregulación de la publicidad de alimentos dirigida a menores, prevención de la obesidad y salud (PAOS Code); Audiovisual area: Código de Autorregulación sobre contenidos televisivos e infancia 2003 (2010).
The scenario that has been illustrated in Module One allows for delving deeper into the issues of digital native. There is a variety of mechanisms to combat serious threats to minors posed by certain practices as advertising child pornography or encouraging child sexual abuse, amoral games, even spam e-mail or unsolicited advertising: setting a minimum age for surfing the Internet, development of devices designed to enable proper parental monitoring and providing information that is easily understable on processing of personal data. The agreement by industry is capital, including codes of conduct or self-regulation, which are further promoted by the GDPR.
In this context, a central place must be given to ARCO's rights, i.e., right of access, right to rectification, right to erasure or to be forgotten and right to object, in relation to certain sectors where minors participate as users or consumers of audiovisual and Internet services. Special consideration is given in Module Two to Internet access, since, for the first time, a minimun age is set in this particular by the new Regulation. Indeed, in relation to the direct offer of information society services, processing of personal data shall be lawful only if it has been consented by an individual over the age of sixteen or has been authorized by the holder of parental responsibility over the child. However, Member States may set a lower age for those purposes, provided that such lower age is not below 13.
The regulation of right to access to social Networks must be studied with a view to Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) nº 910/2014 as regards establishing a framework for a European Digital Identity (COM (2021) 281 final), because the regulation on the right to a European Digital Identity wallet will allow a child to prove his or her age, his or her verification of age revealing other personal data.
In addition to the above, Module Three focuses on the right to erasure, or right to be forgotten. The reason for the specific study of this subject is twofold: on the one hand, such a right has been regulated for the first time by GDPR, following the jurisprudence of the European Court of Justice (ECT) on data protection, services information society and individual's e-rights; on the other hand, according to paragraph (65) of GDPR, the right to erasure is relevant in particular where the data subject has given his or her consent as a child without being fully aware of the risks involved by the processing, and later wants to remove such personal data, especially on the internet. The data subject should be able to exercise that right notwithstanding the fact that he or she is no longer a child.
It will be objecto to study in this Module many judicial resolution on the right to be forgotten such as Judgment of the Court (third Chamber) of 24 November 2011, Judgment of the Court (Grand Chamber) 13 May 2014 Google Spain and Google Inc v. AEPD and Mario Costeja (Case C-131/12, ECLI:EU:C:2014:317), Judgment of the Court (Grand Chamber) 24 September 2019 Google LLC v “the CNIL” (Case 507/17, ECLI:EU:C:2019:772) and Judgement of Spanish High Court (Sala Tercera de lo Contencioso-Administrativo)1624/2020, 27 November 2020.