gggggggg - Anti-Bullying
Today, we are all accustomed to having a mobile phone readily available to record events happening around us or that catch our attention—even in many cases by minors—which generates a variety of opinions. Recently, it was reported that more than 40,000 people signed a petition calling for a law to prohibit the use of mobile phones for children under sixteen, an age commonly associated with key developmental changes in adolescents.
Data protection authorities provide guidance for parents to consider before giving a mobile phone to their children, helping to address questions such as, “If my classmate has a phone, why don’t I?”
Although national legislation may vary, there are already precedents where data protection authorities have sanctioned the recording of minors or the recording of acts involving minors without proper consent.
Case Example: Recording an assault on a minor
Data protection implications
Case Example: Recording an assault on a minor
The incident involved a minor being assaulted in public by a young person, while an accomplice recorded the event. The matter was initially assessed by the local court to determine whether it constituted an offense against privacy or a form of physical assault known as “happy slapping,” which involves recording a physical, verbal, or sexual assault and potentially sharing it online.
In this case, the court determined that the recording did not constitute “happy slapping,” since there was no proven public dissemination beyond a private messaging app. It was also not deemed a violation of privacy, as the assault occurred in public.
Following this, the matter was referred to the data protection authority to assess potential breaches of EU data protection law.
The incident involved a minor being assaulted in public by a young person, while an accomplice recorded the event. The matter was initially assessed by the local court to determine whether it constituted an offense against privacy or a form of physical assault known as “happy slapping,” which involves recording a physical, verbal, or sexual assault and potentially sharing it online.
In this case, the court determined that the recording did not constitute “happy slapping,” since there was no proven public dissemination beyond a private messaging app. It was also not deemed a violation of privacy, as the assault occurred in public.
Following this, the matter was referred to the data protection authority to assess potential breaches of EU data protection law.
Under EU Regulation 2016/679 (GDPR):
- Images of individuals are personal data if they make a person identifiable. The protection of such data is a fundamental aspect of the GDPR.
- Processing of personal data includes operations such as collection, recording, organization, storage, adaptation, consultation, use, communication, dissemination, or any form of enabling access.
Thus, recording another person’s image constitutes processing personal data. Any person recording such material is considered a data controller and must comply with GDPR requirements.
Legal basis for lawful processing
For processing to be lawful, at least one of the following conditions must be met (Article 6 GDPR):
- Consent from the data subject.
- Necessity for contract performance or pre-contractual measures.
- Compliance with a legal obligation.
- Protection of vital interests of the data subject or another person.
- Performance of a task carried out in the public interest or in the exercise of official authority.
- Legitimate interests pursued by the data controller or a third party, provided they do not override the rights and freedoms of the data subject, particularly when the subject is a child.
In the case described, the recording of a minor’s image occurred without consent or any other lawful basis. This constitutes a breach of Article 6 GDPR.
Special considerations for minors
When processing data of a child, additional care must be taken. Consent requirements generally mean that processing a child’s personal data is only lawful if appropriate consent has been obtained from the child or their legal guardians, depending on the child’s age.
Outcome and sanctions
The data protection authority considered the recording of the minor without consent to be very serious, even though the video was not publicly shared. Sanctions can include fines and mandatory deletion of the material.
This case highlights a critical point: recording images or videos of minors without consent constitutes personal data processing, regardless of whether the content is later published. Organizations and individuals must ensure compliance with data protection principles, particularly when dealing with minors, to avoid serious sanctions.
Outcome and sanctions
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This case highlights a critical point: recording images or videos of minors without consent constitutes personal data processing, regardless of whether the content is later published. Organizations and individuals must ensure compliance with data protection principles, particularly when dealing with minors, to avoid serious sanctions.