Age Verification for Minors. Regulations and Position of the AEPD

Age Verification for Minors. Regulations and Position of the AEPD

In an increasingly digitized world, age verification on various online platforms offering adult content has become a subject of considerable interest and debate. With the proliferation of websites offering such content, there is a need to implement effective methods to ensure that users are adults capable of accessing such material, thereby providing adequate protection to minors against potentially unsuitable content.

European Union Regulation – Digital Services Act

Recital 71 of this Regulation establishes that online platform providers must refrain from presenting ads based on profiles created using personal data of users when they have reasonable knowledge that the user is a minor. However, this prohibition should not lead providers to collect more personal data than necessary to verify the user’s age. 

This emphasizes the principle of data minimization in the GDPR and underscores the importance of balancing data protection with the protection of minors. Additionally, Recital 89 highlights the responsibility of online platform providers to protect minors from content that may harm their physical, mental, or moral development. Providers are urged to adopt appropriate and proportionate measures to ensure the privacy, security, and protection of minors in their services, without requiring them to collect additional personal data to verify the age of users. 

The provisions of these Recitals are reflected in Article 28 of the Digital Services Act. This article stipulates that online platform providers accessible to minors must implement adequate and proportionate measures to ensure a high level of privacy, security, and protection of minors in their services. Furthermore, it prohibits the presentation of ads based on profiles using personal data of the user when there is reasonable knowledge that the user is a minor, without obliging providers to collect additional data to verify the age.

As can be seen, it is highlighted that no additional data should be collected to verify the age of the minor, emphasizing the importance of protecting users’ privacy while fulfilling legal obligations to protect minors.

Age Verification of Minors in the General Law on Audiovisual Communication in Spain

Article 89 of the LGCA is of particular relevance, which stipulates that providers of video exchange services through platforms must establish and operate age verification systems for users to protect minors from content that may harm their physical, mental, or moral development.

These systems must prevent minors from accessing harmful audiovisual content, such as gratuitous violence or pornography. In connection with this obligation, Article 93 of the LGCA establishes that the National Commission of Markets and Competition (CNMC), with the report of the Spanish Data Protection Agency (AEPD), will assess the suitability of the measures adopted by providers of video exchange services to protect users and minors.

Failure to comply with these obligations constitutes an infringement, subject to administrative penalties. Therefore, any age verification mechanism will be subject to evaluation by the CNMC, with a prior report from the AEPD. In this sense, it is essential to ensure that the chosen mechanism is suitable, necessary, and proportionate so that these authorities proceed with their approval.

AEPD Position: The Decalogue of Principles on Age Verification and Protection of Minors against Inappropriate Content

The Decalogue of Principles on Age Verification and Protection of Minors against Inappropriate Content, issued by the Spanish Data Protection Agency (AEPD), establishes fundamental guidelines to ensure the safety and privacy of minors online. Below, we summarize these principles regarding the implementation of age verification systems:

1. Privacy and Security of Minors: The system must prevent the identification, tracking, or location of minors online.
2. Age Accreditation: Verification must confirm the appropriate age without revealing if they are minors.
3. Anonymity for Internet Service Providers: It is crucial to guarantee user anonymity when verifying their age, avoiding the linking of personal data with online activity.
4. Verification Restriction: Verification is limited to access to inappropriate content, avoiding unnecessary intrusion into user privacy and “censorship” of content that does not pose a risk to minors.
5. Certainty in Verification: Age verification must be accurate and reliable.
6. Avoid User Profiling: User profiling based on their browsing should be avoided.
7. Non-linkage of Activity between Services: Avoid linking activity data between different services.
8. Parental Participation: Parents should participate in determining criteria for inappropriate content.
9. Respect for Fundamental Rights: Systems must respect users’ fundamental rights, including the right to privacy and access to information.
10. Defined Governance Framework: An effective governance framework must be established to oversee age verification systems.

Each principle highlights the importance of protecting the privacy, security, and fundamental rights of minors online, as well as the need for effective and transparent supervision of age verification systems.

In conclusion, age verification to protect minors online is a crucial issue in today’s digital environment. While there are regulations such as the European Union’s Digital Services Act and Spain’s General Law on Audiovisual Communication that establish certain obligations in this regard, further guidelines from both the AEPD and the Commission are expected to address this issue in more detail.

Additionally, an effective governance framework must be established to supervise and ensure the effectiveness of age verification systems. Ultimately, protecting minors online requires a comprehensive approach that balances privacy, security, and access to information and is constantly reviewed and updated to adapt to technological advances and the changing needs of the digital society.