Data Protection Bill [HL] — House of Lords, 2017-12-11
Topic: Mixed Topics
Beeban Kidron (Crossbench, Unknown): Before I turn to the amendments in my name and that of the Minister, the noble Lord, Lord Stevenson, and the noble Baroness, Lady Harding, I would like to recognise the extraordinary role of children’s charities led by the NSPCC; the Duke of Cambridge Task Force; child experts John Carr and Professor Sonia Livingstone; the Children’s Commissioner; and the remarkable support of colleagues on the Communications Committee and from all sides of this House, especially the noble Lords, Lord Storey and Lord Clement-Jones. Without these powerful voices, we would not be introducing a statutory code of age-appropriate design to the Bill These amendments are a step towards a better digital future for children. They introduce a code that will set out the standards by which online services protect children’s data. They set standards that are directly related to a child’s age and the vulnerabilities associated with that age. They clarify the expectation on services to design data practices that put the "best interests" of the child above any other consideration, including their own commercial interest. They establish the standards by which the Information Commissioner will judge services on behalf of child users. Crucially, they connect design of services with the development needs of children, recognising that childhood is a graduated journey from dependence to autonomy Amendment 109 states that the Information Commissioner must consult widely on an age-appropriate design code, in particular capturing the voice of children, parents, child-development experts, child advocates and trade associations. In doing so, she will have to determine if the use of GPS location services to hold, sell or share a child’s current or predicted location is in a child’s best interest. She will have to consider if privacy settings for children should be automatically set to private. She will have to consider if the service can justify the collection of personal data, such as a child’s school or home address, their birth date, their likes, dislikes, friends or photographs, in order to facilitate a specific activity being undertaken by that child. She will have to deconstruct terms, conditions and privacy notices in order to make them understandable by, and appropriate for, children of different ages. A six year-old needs different protections and information from a 15 year-old. She will have to consider, with the development stages of childhood in mind, whether paid-for activity such as product placement and marketing is transparent to a child user and what reporting and resolution processes should be offered to children Responding to the concern raised by my noble friend Lord Erroll, the code will set out the duty of online services to facilitate the child’s right to erasure under the GDPR, with or without the help of an adult. Perhaps most importantly, the commissioner will—for the first time—consider strategies used to encourage extended user engagement; that is, those design features variously called sticky, reward loops, captology and enrapture technologies that have the sole purpose of making a user stay online. These will be looked at from a child development point of view. The opportunity cost, the need for a rich balance of varied online experiences as well as the need to get offline with ease will all be given weight Finally, the amendment invokes the UNCRC. The age-appropriate design code must incorporate all the rights of children, and the responsibilities of adults to them, as set out in the charter. The code created by the amendment will apply to all services, "likely to be accessed by children", irrespective of age and of whether consent has been asked for. This particular aspect of the amendment could not have been achieved without the help of the Government. In my view it is to their great credit that they agreed to extend age-appropriate standards to all children Amendment 111 states that the code must be laid before Parliament as soon as practicable, but no later than 18 months from the passing of the Bill. Amendments 112 and 113 confirm the negative resolution procedure. Amendment 114 allows the commissioner to update the code. In Committee, my noble friend Lady Howe raised the question of enforcement. Although the code is not mandatory for online services, it is mandatory for the ICO to take it into account when investigating breaches and taking enforcement action Amendment 110 puts the age-appropriate design code into Clause 121 and, consequentially, into Clause 123. This means that online services facing a complaint of any kind, which have not complied with the age-appropriate code, risk enormous enforcement consequences, including the spectre of fines of up to €20 million or 4% of annual global turnover. In Committee, doubts were raised that it was technically possible to regulate the digital environment, so I am particularly grateful to the noble Baronesses, Lady Lane-Fox and Lady Shields, to Sky and to TalkTalk, for making it clear that there is no technological impediment to effective design; it is simply a question of corporate and legislative will Self-regulation has not provided a high bar of data protection for children. On the contrary, we have seen a greedy disregard of children’s needs from some sections of the tech sector in their eye-watering data collection policies. The introduction of a statutory code makes very clear what is required of them, and although data protection is crucial, it is not the only issue that confronts children in the digital environment. The principle which these amendments establishes—that a child is a child, even online—must now be established in every aspect of a child’s digital life, as a cultural and legal norm On this subject, I urge the Government to take one further step in the Bill: the introduction of a super-claimant procedure provided for by article 80(2) of the GDPR, and supported by the ICO. Children need advocates in all areas of life, including the digital. We will, no doubt, return to that in the new year. In the meantime, I thank the Minister, DCMS officials, the Bill team, the Minister for Digital and the Secretary of State. Along with those whom I have already mentioned, they have reason to be proud of introducing age-appropriate design standards to the Bill. Above all, it is a necessity for a 21st century child to access the digital environment knowledgably, creatively and fearlessly I support my noble friend Lord Clancarty, who has an amendment in this group. I look forward to hearing from the Minister of the Government’s commitment to the aspects of design that the commissioner will consider; that children’s needs will be at the heart of this code; and a clear indication that enforcement will be a priority for the commissioner and robustly applied. I beg to move.