My Lords, there are a series of amendments to Clause 8 that we are debating today. I hope your Lordships will allow me to give some background to set the context. Clause 8 sets the age at which children can first provide their personal data online in relation to information society services, without the permission of a parent or guardian. Given that the provision of such personal data is in exchange for online products or services, this age of consent is effectively the age at which companies can begin making money from young people online without a parent or guardian’s involvement. Article 8(1) of the GDPR states that the age of so-called digital consent should be 16, but allows member states to lower the age as long as it does not go below 13. The UK Government have set the age at 13, the minimum age possible in Clause 8.
Amendment 16 is a probing amendment to explore the evidence for whether the UK should be opting for 13. As was mentioned at Second Reading, there is concern that the Government have sleepwalked into this position without having provided much in the way of evidence for the decision to this House or the public. Such evidence is needed, not least because a recent YouGov survey for BCS, the Chartered Institute for IT, has suggested that the Government’s thinking is a long way from where public opinion sits. In the survey, the public were asked what the most appropriate age of consent for providing personal data online should be. The findings were rather stark. A mere 2% believed 13 was the most appropriate age. The vast majority, 81%, believed it should be set to either age 16 or 18, with non-parents tending to favour 16 and parents favouring 18. These findings indicate that,
even if 13 is the most appropriate age, the Government have some way to go in convincing the public that this is the case.
There is little evidence provided by the Bill’s Explanatory Notes, which simply note that the age of 13,
“is in line with the minimum age set as a matter of contract by some of the most popular information society services which currently offer services to children (e.g. Facebook, Whatsapp, Instagram)”.
Given that these are the very companies that stand to profit the most from children providing their personal data to them, it seems counterintuitive that they have effectively been allowed to set a de facto standard age of consent for them doing so. This was recognised in the Children’s Charities’ Coalition on Internet Safety’s open letter to the Information Commissioner’s Office earlier this year.
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If the Bill is to set into law the age at which online companies can start profiting directly from our children and grandchildren, would it not be better for that age to be set deliberately and consciously and based on more than the status quo established by the companies? I am not saying that 13 is the right or wrong age at which children can give information away online, but this should be decided based on evidence from industry and the public. That would allow the decision to be clearly explained and, importantly, justified to a public who are apparently uncomfortable with it currently.
At Second Reading, the Minister told your Lordships that the Government had consulted on the GDPR and that 13 was in line with the responses they had received. However, the relevant page on GOV.UK does not clearly set out further justification for using the age of 13, nor is there any referral to support from children’s charities and parents for 13 over one of the other choices The noble Lord, Lord Ashton, in his letter of 19 October to Peers after the debate did not set out any reference to the evidence on which the Government had based their decision.
My amendment is simple: it would amend Clause 8(a), where the age of 13 is established, and would instead transfer responsibility for setting that age to the Information Commissioner. It would crucially add a requirement for the commissioner to have based her decision on relevant evidence and consultation. This would demonstrate a conscious process to the public, providing an important first step to bringing public opinion in line with the new legislation—an evidence-based process that should take into account the issues around social media and online safety raised in the Internet Safety Strategy Green Paper, a document published since the Bill’s Second Reading.
This is an important issue for children, young people and parents. I look forward to the debate on the other amendments in this group and to the Minister’s response. I beg to move.