Mick Wallace (Wexford, Independent) | Oireachtas source

We welcome Deputy Shortall's conversion and we look forward to Sinn Féin, Fianna Fáil and the Labour Party joining in on the issue also. We fought on the Government's side on this issue on Committee Stage so we are repeating an amendment that Senator Lynn Ruane first introduced in the Seanad and which we also proposed during Committee Stage in the Dáil.

We believe that the digital age of consent should absolutely remain as it is in the Bill at 13 years of age. It would be detrimental to do otherwise. Changing it without robust and adequate verification processes in place does not make any sense. Setting it at 16 years of age is the easy option and, as it has turned out in the last weeks, has proven to be a populist one. To do so, however, would be pointless and counterproductive. There are no adequate verification processes currently in place to verify age of consent and there will not be any in place in the next two weeks before the general data protection regulation, GDPR, comes into effect.

On Committee Stage, arguments were made that WhatsApp will ask users to confirm they are aged 16 or over. The argument was built around this, despite the fact that WhatsApp and Facebook had already committed to these changes. Anybody who uses WhatsApp and who had simply to tick a box at the weekend to say they were over 16 will know and understand the pointlessness of setting the digital age of consent at 16. A friend of mine tried this over the weekend and he was able to show me that a child of four could have done so.

There are also fundamental conceptual difficulties with age verification. The processes to do it adequately are themselves considered violations of privacy. Age verification processes that might be adequate are also data harvesting exercises. In that sense, it is important to question why certain people who should really know better - I am not referring to Senators or Deputies - are lobbying for the age of consent to change to 16 years of age. It is also interesting that certain people who have been lobbying Deputies and Senators for the digital age of consent to be set at 16, to my knowledge, have not lobbied at all in relation to our amendment No. 13, which proposes to prohibit the profiling and micro-targeting of children. If a body wants to set the digital age of consent at 16, perhaps it is likely that it wants to be able to harvest the data of parents through the verification process, as well as the children's data once the parents have consented and verified.

Including a prohibition on profiling and direct marketing to children would surely go a long way to addressing people's fears on the digital age of consent being set at 13 years of age. This is not an unreasonable request. The Ombudsman for Children recently made this point also. The ombudsman has argued that the digital age of consent should be set at 13 but that the profiling of children and the harvesting of their data for commercial purposes should be prohibited on a statutory basis. This kind of digital marketing is incredibly powerful. It would surely be a progressive step to shield children from it. I believe that the parents of Ireland would thank us for this.

I acknowledge the Minister’s points during the Committee Stage debate. The Minister mentioned the European Court of Justice ruling that the imposition of limitations in national or member state law on the processing of personal data that is lawful under the GDPR is in breach of EU law. The Minister was referring to Article 7(f) of the 1995 directive, which is now part of Article 6.1(f) of the GDPR. The Minister also referred to Recital 47 of the GDPR, which is a reference to the fact that the processing of personal data for direct marketing purposes may be regarded as carried out for a "legitimate interest" as per Article 6.1(f). I accept that based on their business model, social media platforms like Facebook can presumably claim that the kind of data processing they do is ‘"legitimate interest" processing. I understand that Article 6.1(f), however, makes a special provision for the protection of the personal data of children. Article 6.1 of the GDPR broadly reproduces an equivalent provision in the data protection directive but the need to specifically consider the interests and rights of children is new. At the very least, this should require that data controllers like Facebook ensure that any decision to process data relating to children on the basis of "legitimate interest" is carefully documented and that a risk assessment is conducted.

Even if this amendment does not succeed, the digital age of consent should remain at 13 years of age. My point still stands that without reliable, sufficient and adequate verification procedures in place, setting the age of consent at 16 will not work and will have many damaging and unintended consequences. Setting the age of consent at 16 will not prevent children from being profiled and marketed to, for example, by fast food or junk food companies. If a parent consents for a 13 or 14 year old to use a particular online platform, that 13 or 14 year old will be subjected to the same profiling and micro-targeted marketing. They will be subjected to it also when they inevitably bypass, very easily, the necessity for parental consent.

I shall now turn to amendment No. 15. As I have already said, it is a very bad idea to set the digital age of consent at 16 years of age without the necessary verification processes in place. Any age verification processes that might be adequate are themselves data harvesting exercises and we should ask ourselves why certain so-called experts are advocating for the digital age of consent to be set at the age of 16.

9 o’clock

I mentioned a number of points previously. This week saw the strange and worrying situation of the Children's Rights Alliance having to defend itself against an accusation in a Sunday tabloid that its support of 13 years as the digital age of consent was based on Government funding. That is an unfair claim.

See this speech in context