Guidelines 05/2020 on Consent under Regulation 2016/679 (GDPR)

Paragraph 7.1.3  Age

131. The GDPR specifies that “Member States may provide by law for a lower age for those purposesprovided that such lower age is not below 13 years.” The controller must be aware of those different national laws, by taking into account the public targeted by its services. In particular, it should be noted that a controller providing a cross-border service cannot always rely on complying with only the law of the Member State in which it has its main establishment but may need to comply with the respective national laws of each Member State in which it offers the information society service(s). This depends on whether a Member State chooses to use the place of main establishment of the controller as a point of reference in its national law, or the residence of the data subject. First of all the Member States shall consider the best interests of the child during making their choice. The Working Group encourages the Member States to search for a harmonized solution in this matter.

132. When providing information society services to children on the basis of consent, controllers will be expected to make reasonable efforts to verify that the user is over the age of digital consent, and these measures should be proportionate to the nature and risks of the processing activities.

133. If the users state that they are over the age of digital consent then the controller can carry out appropriate checks to verify that this statement is true. Although the need to undertake reasonable efforts to verify age is not explicit in the GDPR it is implicitly required, for if a child gives consent while not old enough to provide valid consent on their own behalf, then this will render the processing of data unlawful.

134. If the user states that he/she is below the age of digital consent then the controller can accept this statement without further checks, but will need to go on to obtain parental authorisation and verify that the person providing that consent is a holder of parental responsibility.

135. Age verification should not lead to excessive data processing. The mechanism chosen to verify the age of a data subject should involve an assessment of the risk of the proposed processing. In some low-risk situations, it may be appropriate to require a new subscriber to a service to disclose their year of birth or to fill out a form stating they are (not) a minor. If doubts arise, the controller should review their age verification mechanisms in a given case and consider whether alternative checks are required.