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Some thoughts on the age of consent around China's new personal data protection law, and the recent Judgment of the Colombian Supreme Court of Justice

On August 20, the Xinhua agency (official news agency of the Republic of China) announced the approval of the "Personal Information Protection Law (PIPL)". This law, according to the state media and the information available on the National People's Congress of China’ website, seeks to regulate the processing of personal information, especially that carried out by big tech or Internet giants that develop platforms and applications, through strict guidelines related to:

  • Cross-border processing of personal data.
  • Mandatory personal data localization.
  • Portability of personal data.
  • Sets quantity of data thresholds to determine mandatory periodic reports, or even the obligation to incorporate as a company under the laws of the Republic of China.
  • Deems the personal information of minors under 14 years of age as sensitive and sets legal representative’s authorization for processing.

With regard to the latter, attention is drawn to the Chinese legislative proposal, which, although foreign allows us to take up the debate that has taken place in Colombia around the age of consent since Colombian legislation on personal data requires that the legal representative must grant authorization to the child or teenager (up to the age of 18)  for managing the processing of their data, a limitation that as far as teenagers are concerned, does not find concordance with what has been established in other law-matters and jurisprudence.

Thus, while the Colombian Supreme Court of Justice trough Judgment SC3535-2021 - issued with just two days of difference from the approval announcement of the PIPL-, analyzed minors' consent based upon the full capacity of teenager-minors (over 14 and under the age of 18) to constitute natural or legal ties, such as forming a family and/or the facto marital union, and assume the responsibilities derived from these, the law, specifically article 12 of Decree No. 1377 of 2013, limits this capacity when it comes to personal data.

Therefore, it is worth reviewing how the Republic of China has addressed the issue of the age of consent, given its number of Internet users which according to the information on the website of the National People's Congress of China by the end of 2020 amounts to  989 million, of which 183 million were minors; how strict the personal data protection regime is going to become with the PIPL; and finally, the relevance as a nation for the world economy and punctually for the companies that are part of the information society that need to continue or expand their markets to the territory of this country.

China's Civil Code states that minors have full capacity when their main source of support is the income from their own labor. It also states that although a minor under 8 years of age or older has limited capacity to perform legal acts and that in this regard, as a general rule they need the consent or ratification of their legal representative to do so, it also stablishes as an exception the fact that minors may independently perform legal acts if these are “purely beneficial” to them or if are appropriate to their age and intelligence. It is even established that in cases of adoption if the minor is 8 years of age or older, its consent must be obtained.

This allows us to see how China understands the capacity of minors according to their age, maturity, the progressivity of the morphological, physical, psychic, and discernment faculties of the teenager - paraphrasing of what was said in the aforementioned Judgment SC3535-2021, recognizing their full capacity to directly assume the exercise of their rights and duties.

Therefore, even when in more complex, strict, recent, and restrictive regimes such as the Chinese, there is room for an analysis of the minor's faculties to express their will in different aspects of the exercise of their rights, and the Colombian Supreme Court of Justice agrees that a teenage-minor should have full freedom of consent with regard to entering into legal ties such as de facto marital unions and forming a family, Colombian law restricts this faculties when it comes to personal data.

Thereby, it could be concluded that nowadays in Colombia the fact that a teenager uses an Internet app or platform may have greater restrictions than assuming responsibilities within the framework of legal ties such as the one analyzed in Judgment SC3535-2021, understanding that undoubtedly demonstrates how regulation on minors in our country has several challenges to generate a transversal coherence in the online and the offline world.

Authors

Daniela López