While Spanish legislation does not have a specific regulation on viral internet challenges, there are a number of laws that mention children’s digital rights. Furthermore, with the new law on the protection of children and adolescents from violence (Spanish only) put forward in 2021, a few changes have been made to the regulation which could protect minors from some harmful viral challenges.
Rodolfo Tesone, a lawyer specialised in digital transformation issues and one of the 15 members in the group of experts formed to draft the Spanish Charter of Digital Rights (Spanish only), states that the regulation vague and there is no single body that regulates digital matters. The penal code provides the most protection in that regard, but it does not have many applications in the digital sphere, states Tesone. There is no comprehensive regulation on the access to content, either, since it depends predominantly on the same digital platforms that spread the content. This “opens up the debate on freedom of expression versus filtering/censorship, although it is not up to these platforms – private companies – to defend or limit citizens’ liberties”, Tesone explains.
In this connection, the recent law on the protection of children from violence (8/2021 [Spanish only]) introduces a number of recommendations with the goal of creating “safe digital environments”. According to this law, public institutions need to foster their collaboration with the private sector in order to standardise the age-rating system and “smart labelling of digital content” (article 46).
In Spain, as in the rest of the European Union, there is a hybrid model involving the state and private regulation of companies for monitoring the content that gets published. However, as Tesone points out, one of the problems encountered in regulating digital platforms is that content is only reviewed after it has been published. So once content has gone viral, even after a platform has taken it down because it was identified as being potentially harmful to children, the “harm” has already been done. “If we think about this from a child protection perspective, digital platforms also need to have mechanisms in place for checking content before it is published”, Tesone explains. But, he continues, due to a lack of resources, a lack of interest or simply because it is not their duty to protect individual rights, companies do not always do so.
Ultimately, children’s access to online content depends in most instances on parental supervision. And when parents are not digitally literate or aware of the risks, they may not be supervising their children in an appropriate or deliberate enough way. Therefore, in the interest of preserving children’s fundamental rights, article 84 of the organic law on the protection of personal data and guarantee of digital rights (3/2018 [Spanish only]) calls on the parents or guardians of minors to ensure that their children are using the internet and other digital services in a balanced and responsible manner. The same article also states that the Prosecution Ministry (Spanish: Ministerio Fiscal) shall intervene if images of minors or minors’ personal data are used against their rights.
In the case of crimes committed in the digital environment that could affect minors, in 2015, , as per Organic Law 13/2015, the crimes committed via technological means were amended and added to the penal code. According to Pilar Tintoré, a lawyer specialised in children’s and adolescents’ rights, this update has helped increase the scope of the law to include crimes that were difficult to pin down before. The recent law protecting minors from violence also incorporated a number of criminal offences in the penal code. For example, in article 143 of the law, it states that the public dissemination or spread of content via internet, telephone or any other technological means that could promote, foster or incite the suicide of minors shall be punishable by imprisonment for one to four years.
In Spain the minimum age requirement to sign up for a social network is 14 years, according to the law on the protection of personal data and guarantee of digital rights (3/2018 [Spanish only]). However, the European regulation on the protection of personal data explicitly states that the processing of a child’s personal data is only considered lawful if the child is 16 years or older (article 8). Before age 16, signing up for a social network requires the consent of a child’s parents or guardians. So there is a discrepancy between the two laws and, on top of that, the companies are subject to the law of the country where they are registered. All of that means the minimum age to join a social network can vary from platform to platform.
Instagram and Facebook require users to be at least 14 years old to sign up; in the case of TikTok it is age 13. Underage children need consent from their parent or guardian in order to sign up. But aside from the minimum age requirement, there is the issue of the verification method the platforms use to determine whether the people requesting to sign up are actually the age they claim to be. This issue is pointed out in a study by Laura Davara (Spanish only) published by the Spanish Data Protection Agency. Tesone supports this argument, stating that, since the consent is given online, “platforms do not have a substantive mechanism for properly verifying the users’ age”.
In order to tackle this problem, the Spanish social network Tuenti pioneered a double-verification method, i.e. both an online and offline verification, in order to sign up a minor. Users had to provide a copy of their ID card in order to validate their age and, thanks to this mechanism, the platform managed to ensure that users met its age and parental consent requirements. Davara’s study includes a statement from Tuenti’s own executives that over 90% of the users who had been asked to verify that they were 14 or older by providing their ID did not respond to the request and, therefore, had their accounts blocked. However, Tuenti no longer exists and the other online platforms have not incorporated mechanisms like these.