Families and the Law: Taking Account of Children’s Evolving Capacities in Analogue and Digital Contexts

Dethloff, Nina

doi:10.1007/978-3-658-39664-0_1

Nina Dethloff⁶

Part of the book series: Juridicum – Schriften zum Medien-, Informations- und Datenrecht ((JSMID))

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Abstract

New media have a fundamental influence on families and their lives. Especially for children, the process of digital transformation encompasses both substantial potential as well as a new range of risks. It thus challenges existing normative orders. During the last century and in particular the past decades, the position of children in families, in society, and in law has changed considerably. This requires legislators to increasingly take the child’s evolving capacities into account, both in analogue and digital contexts.

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New media have a fundamental influence on families and their lives. Especially for children, the process of digital transformation encompasses both substantial potential as well as a new range of risks. It thus challenges existing normative orders. During the last century and in particular the past decades, the position of children in families, in society, and in law has changed considerably. This requires legislators to increasingly take the child’s evolving capacities into account, both in analogue and digital contexts. After first taking a look at the dramatic impact of digitalization on families and their lives (1), the following contribution will address the shift in children’s position in law (2) before exploring in depth how various legal frameworks take cognizance of children’s evolving capacities in analogue and digital spheres (3).

1 Impact of Digital Transformation on Families and their Lives

In recent years, the internet has provided a variety of new methods of communication, information, documentation, and representation that allow different ways of digital participation. The process of digitalization has a tremendous impact on the analogue society at large and thus profoundly transformes lives, including those of families and their members. Parents and children use their access to the online world in a multitude of ways, for instance by engaging in self-representation or by staging their family on social media. Likewise, ways of ‘doing family’ online are developing through new communication tools such as direct messenger applications like WhatsApp that family members use to interact with each other and to organize their family life.^{Footnote 1} As a result, in the digital world, children have increasingly become objects of imagery, their pictures among other personal data shared with family, friends, or the world.^{Footnote 2}

The sharing and re-sharing may be done by their parents, third parties, or the children themselves.^{Footnote 3} Some parents (to be) share details of their unborn baby, for example by posting sonographs or videos of them visiting the hospital. Daily toddler bedtime routines from the children’s bedroom, as well as pictures from the child’s first day of school, weekend getaways, and family holidays are also documented online to a mostly unrestricted audience.^{Footnote 4} Potential dangers for children^{Footnote 5} include cyberbullying, digital kidnapping, or sexual harassment. Moreover, in the longterm, such practices of so-called ‘sharenting’ may eventually have a negative impact on the normal development of the child.^{Footnote 6} Not surprisingly, there are concerns about children’s online privacy^{Footnote 7} and questions in regard to the scope of parental power of representation.^{Footnote 8} While with such sharenting performative elements dominate,^{Footnote 9} financial aspects have taken center stage with the emanation of influencer marketing,^{Footnote 10} leading some parents to commercialize all aspects of their kids’ childhood.

But children are not only objects of imagery: They also take part as actors in the digital world.^{Footnote 11} From increasingly young ages, and for extended periods of time every day, they are using new media through smart phones and other internet connected devices.^{Footnote 12} Thus, studies have shown that there has been a substantial increase in the time and ways that even young children under the age of nine are using the internet, for example, by watching and sharing videos, playing online games, searching for information, doing their homework, and socializing within children’s virtual worlds.^{Footnote 13} Generally, online-communication with peers, romantic partners, and even strangers plays an important role in adolescence—with the interaction itself and the content potentially providing benefits and posing risks for the teen.^{Footnote 14} This being said, around half of all 11–16 year olds have at one stage encountered one or more of ten frequent internet risks, such as cyberbullying, sexting, grooming, exposure to harmful or disturbing content, or fake news.^{Footnote 15} Children might also use social media platforms to express themselves, for instance by sharing grief and mourning.^{Footnote 16} Moreover, digital youth cultures have emerged like participating in (dance) challenges on mobile short video apps like TikTok.^{Footnote 17} Although most legislation requires children to be of a certain age or to obtain their parents’ consent for commercial activities, young children increasingly also use the internet for commercial purposes.^{Footnote 18} At even younger ages, smart toys provide new opportunities,^{Footnote 19} both as educational tools and as means of surveillance.^{Footnote 20} The use of real-time apps connected to smart technologies (i.e. baby monitors or sensors), whether at home or in daycare centers, literally allows an infant’s every move to be supervised and a child’s ‘normal’ development to be monitored—all while collecting enormous amounts of sensitive data on children^{Footnote 21} without necessarily providing the needed amount of protection, as experiences have shown.^{Footnote 22}

While children are availing themselves of the enormous potentials of the internet, they may become perpetrators, for example, when sharing (personal) data and thereby violating others’ privacy or copyrights. Here, parental control apps come into play, but these may also invade the child’s or adolescent’s sphere of privacy^{Footnote 23} much to their dismay.^{Footnote 24} With data being today’s ‘digital gold,’ powerful economic players are likewise involved in the digital transformation of family lives.^{Footnote 25}

2 Paradigm Shift in Law: From Children as Objects to Persons with Rights

2.1 Historical Perspective

Against this background, the paradigm shift in law affecting both the analogue and the digital world will now be outlined. For centuries, children were seen as objects, first needed as workers in agriculture and factories, then increasingly as objects of love and care.^{Footnote 26} However, over the course of the last century, their protection and well-being have gradually moved into the focus.^{Footnote 27} This was reflected in law: Increasingly, protecting children as societies’ most vulnerable members became imperative, and the concept of the children’s welfare gained importance.^{Footnote 28} Moreover, Western legal systems that built on Roman law had long adhered to the concept of patria potestas.^{Footnote 29} Even though “the father’s power” no longer gave him total legal rights over his children as in Roman law,^{Footnote 30} children remained under parental authority, with the father’s authority gradually being extended to both parents as gender equality became more recognized. Meanwhile, the change in awareness has found its expression in the replacement of the concept of parental authority by that of parental responsibility, which today prevails above all in European and supranational law.^{Footnote 31}

2.2 Recognition of Children’s Rights

However, the recognition of independent rights of children, which they are entitled to regardless of their minority, is a more recent development. For the first time, the position of the child, as a subject and holder of rights, found internationally binding recognition in the comprehensive guarantees of the UN Convention on the Rights of the Child (CRC) of 1989.^{Footnote 32} It commits the 196 state parties, which currently include all Member States of the European Union and—with the exception of the United States—all UN Member States,^{Footnote 33} to actively promote the rights of the child. Art. 3 (1) of the CRC not only requires that the best interest of the child be a primary consideration in all state actions concerning children. It also grants numerous specific rights to all children, who according to Art. 1 CRC are all persons under the age of 18, unless under the law applicable to the child, majority is attained earlier,^{Footnote 34} and thus explicitly also to adolescents.^{Footnote 35} These include, among others, the child’s right to life and development (Art. 6 CRC); to protection from violence, abuse, and neglect (Art. 19 CRC); and to be heard (Art. 12 CRC).

Notably, the rights of the CRC apply both to the analogue and digital world. This becomes particularly obvious with the right to access to information from the media in Art. 17 CRC, which encompasses all forms of media with a main focus on the digital environment.^{Footnote 36} Such a right is especially important as the internet became de facto youth’s main access point to information through the use of mobile technology. It thus provides the ability to access important information, for example, in regard to health and counseling, which could potentially influence the quest for equality.^{Footnote 37} Moreover, Art. 13 CRC expressly states that the right to freedom of expression includes the freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice, which consequently includes digital and audiovisual media.^{Footnote 38} As adolescents use the digital sphere for leisure to socialize and play, as well as to learn and participate and engage in (political) opinions,^{Footnote 39} the right to leisure activities and participation in cultural life and the arts in Art. 31 CRC, as well as the right to education in Art. 28 CRC, must be seen in the light of the digital era^{Footnote 40} and can only be fully guaranteed by providing access to the internet.^{Footnote 41} The opportunities offered by digital participation are also associated with increased risks inter alia for the right to privacy of adolescents,^{Footnote 42} which is explicitly protected by Art. 16 CRC. According to this provision, children shall be subjected to neither arbitrary or unlawful interference with their privacy, family, home, or correspondence nor to unlawful attacks on their honor and reputation.

The adoption of the CRC has been the starting point for the widespread development of children’s rights.^{Footnote 43} They are not only enshrined in the EU Charter of Fundamental Rights (Art. 24), but also embedded in many national legal systems. In some states, such as Norway^{Footnote 44} and Spain,^{Footnote 45} the CRC became domestic law immediately upon ratification; in Spain, it even prevails over other legislation and can be invoked directly before the Constitutional and Supreme Court.^{Footnote 46} In other countries, like Germany, corresponding legislation has been passed to implement the treaty gradually.^{Footnote 47} Elsewhere, the entire body of law was reviewed to determine whether it complied with the Convention, such as in Sweden, where it recently explicitly also became law.^{Footnote 48} Moreover, a number of current European constitutions not only require taking into account the special need for protection of children, but also explicitly contain individual children’s rights or even detailed guarantees of such rights.^{Footnote 49}

2.3 Children, Parents, and the State

Despite this broad recognition of children’s rights brought about by the worldwide adoption of the CRC, there remain considerable differences in national systems.^{Footnote 50} At the heart of this lies the fact that children, at least initially, are not able to exercise these rights themselves. It is therefore equally well established that it is primarily the right and obligation of parents to care for and educate their children. Parental rights are also explicitly guaranteed by the CRC in Art. 5, in Art. 2 of the additional protocol of the ECHR,^{Footnote 51} and many national constitutions.^{Footnote 52} Accordingly, in Germany, Art. 6 (2) 1st st. Grundgesetz (GG; German Basic Law) guarantees that the care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. It also provides in Art. 6 (2) GG that the state shall watch over parents’ performance of this duty. However, as children’s abilities slowly mature, their capacities to exercise their rights correspondingly increase. Consequently, Art. 5 CRC explicitly requires that state parties shall respect parents’ responsibilities to give appropriate direction and guidance to the child in exercising their rights in a manner consistent with their evolving capacities.

Having said this, it is evident that the granting of parental rights and duties on the one hand and the recognition of children’s rights on the other raise fundamental questions as to the role of the state: When is the state allowed or required to interfere in the upbringing of a child? As is the case in the German legal system, for instance, it is often not seen as the state’s role to second guess parents’ decisions about what they consider best for their children or define the optimum standard for a child’s upbringing,^{Footnote 53} but rather to merely interfere when the welfare of the child is at risk.^{Footnote 54} Accordingly, here it is assumed that in general, parents get to decide how much supervision their children need and how far their scope of actions may be restricted.^{Footnote 55} Pursuant to well-established case law of the Federal Constitutional Court, this requires that a present or at least imminent danger to the child’s development is to be anticipated, which, should it persist, would likely lead to substantial damage to the physical, mental, or psychological well-being of the child.^{Footnote 56} If, however, such a danger exists, the state is not only entitled but obliged to intervene.

Even with the recently proposed introduction of children’s rights into the German Constitution, this fundamental premise would not have changed: Since the adoption of the CRC, there has been an ongoing discussion in Germany about including specific children’s rights into the Constitution.^{Footnote 57} On the one hand, it has been claimed that taking such a step would be unnecessary, as it is well established that the German Basic Law grants fundamental rights, such as those to life and liberty, the free development of personality, and the freedom of expression, to everybody—including children. Thus, all the rights already exist, and the establishment of specific children’s rights is considered redundant.^{Footnote 58} On the other hand, it has been maintained that by incorporating children’s rights into the German Basic Law, as repeatedly called for by the UN Committee on the Rights of the Child,^{Footnote 59} children’s concerns would take on a whole new weight and always have to be taken into account. More importantly, recognizing rights of the child should not be left to interpretation by the Constitutional Court, but children should instead be explicitly entitled as bearers of their own fundamental rights.^{Footnote 60} Additionally, it would emphasize the rights of children in relation to the rights of their parents.^{Footnote 61} Yet the recently proposed compromise^{Footnote 62} in this debate was to merely add to Art. 6 (2) GG a subsection stating that the constitutional rights of children, including their right to develop into self-reliant individuals, shall be respected and protected. Additionally, it stipulated that the best interests of the child shall be given due consideration, and finally, that children’s constitutional right to be heard shall be safeguarded. However, this addition to Art. 6 GG was not supposed to impact the legal relationship of parents and children, and in particular, not limit parental rights. It therefore specifically stated that the primary responsibility of parents shall remain unaffected.^{Footnote 63}

Nevertheless, with regard to children’s rights, the question remains in what way their exercise is then initially left primarily with the parents. It also begs the question of how children’s evolving capacities to exercise their rights are recognized by the law, as is required by Art. 5 CRC, which provides the basis for the relationship between children, their parents, and the state. This becomes particularly relevant in cases where a conflict exists between parents and children, which may occur no less with regard to matters in the digital than in the analogue sphere.

3 Legal Recognition of Children’s Evolving Capacities

Art. 5 CRC aims at encouraging respect for children’s evolving capacities to exercise their rights themselves, while at the same time balancing this with their need to be protected due to their relative lack of experience and maturity. The following section will consider how the evolving capacities of children are recognized in different normative orders.

3.1 Principle of Parental Responsibility Until Majority

The starting point in all legal systems is that generally a person only reaches full legal capacity upon majority, most often the age of 18.^{Footnote 64} Until then, parents are generally granted parental responsibility of their children.^{Footnote 65} As holders of parental responsibility, they have to provide the child with care, protection, and education.^{Footnote 66} This encompasses inter alia the right and duty to decide in personal as well as financial matters for their child. Moreover, the holders of parental responsibility act as legal representatives regarding the child’s person and property.^{Footnote 67}

A number of jurisdictions, though, provide for the possibility that under certain circumstances, minors, even before attaining the general age of majority, are no longer considered to be under the care and control of their parents but instead take full or at least limited legal responsibility for themselves. Such a full or partial emancipation may result from a declaration of majority, be it by parental consent or more often by judicial decree, provided that the necessary conditions are fulfilled.^{Footnote 68} However, (partial) premature majority or emancipation may also be the consequence of a specific event or act, such as marriage,^{Footnote 69} parenthood,^{Footnote 70} or setting up of a business, be it offline or online, by a minor.^{Footnote 71} The reason for legally granting premature majority in those cases is twofold: For one, such acts may in and of themselves be considered as an expression of a certain maturity of the minor, or they may also legally require the fulfillment of certain conditions, such as reaching a certain age or maturity, parental consent, and/or court approval. Moreover, following such events, certain legal acts may often become necessary, like those involved in setting up a household, acting as parents, or conducting the firm’s business, which requires legal capacity.

Additionally, however, if minors are not emancipated before reaching majority but remain, as is the rule, under parental responsibility, their evolving capacities are commonly recognized in various legal realms, which may be relevant both in the analogue and the digital world.

3.2 Children’s Autonomy: Different Legal Realms and Rules

3.2.1 Exercise of Parental Responsibility

First of all, this concerns the relationship of parent and child as determined by national family laws. Here, parents, as holders of parental responsibility, are increasingly required to take account of children’s autonomy in accordance with their developing ability and need to act independently.^{Footnote 72} This relates to a variety of issues, such as how and to what extent children are supervised, both offline and online, in order to prevent that they are harmed or that they harm others. It also pertains to parental decisions about contact with third parties, friends, and peers. Thus, it is currently being widely discussed whether, for what purposes, and to what extent parents may use tracking or parental control apps to follow their children’s on- and offline activities.^{Footnote 73} In German law, the parents’ duty of supervision according to Sec. 1631 (1) Bürgerliches Gesetzbuch (BGB; German Civil Code) also applies to the digital sphere and requires that parents monitor the child’s usage behavior when a smartphone is given to them or when they otherwise begin using the internet.^{Footnote 74} In principle, parents may utilize an application, such as a tracking app, to fulfil their duty of supervision. Also, the parents’ right of access to their child pursuant to Sec. 1632 (2) BGB, which is equally part of parental custody, gives them the right and duty to monitor with whom the child has contact in order to protect them from damaging influences and ultimately prevent harm.^{Footnote 75} Even applications that preclude communication with certain partners from the outset may, under certain conditions, be covered by the parents’ right of access. However, when exercising both the duty of supervision as well as the right of access, the persons with custody must, according to Sec. 1626 (2) 1st st. BGB, take into account the evolving capacity and the growing need of the child to act independently and responsibly. As a matter of principle, parents should therefore use parental control apps only after disclosure to the child and with their consent, considering the child’s age as well as stage of development, and discuss matters of parental care with the child as far as it is appropriate with regard to their maturity.^{Footnote 76} Furthermore, the child’s general right of personality, protected under Art. 2 (1) in conjunction with Art. 1 (1) GG, must be given due consideration. Therefore, parents’ control must first be limited to the external circumstances of use and communication, i.e. the whether and how of communication as well as who the communication partners are.^{Footnote 77} Controlling the content of the communication may only take place if there is a justified suspicion that the child’s welfare is endangered.^{Footnote 78}

3.2.2 Limited Legal Capacity

In order to introduce children to economic participation while taking into account their evolving capacities, virtually all jurisdictions grant minors at a certain age or degree of maturity some limited legal capacities before reaching majority. Thus, they recognize a limited or partial legal capacity to validly perform certain legal acts, in particular to contract without parental consent, for example, in cases of beneficial or minor transactions. This may concern only certain transactions, such as those covering so-called ‘necessaries’,^{Footnote 79} those that have been paid for with funds earned by the minor or given to them for free disposal,^{Footnote 80} as well as transactions that are customarily performed independently by minors of that age^{Footnote 81} or that are not detrimental to the minor.^{Footnote 82}

Whether a limited capacity to validly conclude offline or online contracts is recognized widely depends upon reaching a certain age, with the age limits and corresponding capacities ranging considerably from one legal system to another. While in Germany minors from an age as young as seven are considered to have partial legal capacity—which merely allows them to enter into legally beneficial or at least neutral transactions^{Footnote 83} or validly conclude contracts which the minor directly fulfills with their pocket money^{Footnote 84}—age limits for a partial legal capacity are most commonly 14,^{Footnote 85} 15,^{Footnote 86} or 16.^{Footnote 87} Still other jurisdictions have set up several age limits in order to mirror the evolving capacities of children and adolescents. For instance, in Austria,^{Footnote 88} children from the ages of seven to fourteen are able to consent to contracts about minor matters of everyday life,^{Footnote 89} while from the age of fourteen on, as ‘mature minors’, they possess partial contractual capacity. This enables them to validly consent to providing services or to entering contracts regarding property left to their free disposal as well as income from their own earnings.^{Footnote 90}

In contrast, instead of establishing a fixed age or age levels for a limited legal capacity of minors, other jurisdictions use criteria such as the minor’s capacity of judgment. Whether a minor is able to validly engage in certain transactions therefore depends upon their individual competence to conclude the respective contract. Thus, in Switzerland, minors who are capable of judgment can validly conclude contracts concerning the disposal of their own earned income without parental consent.^{Footnote 91} The same is the case in Finland.^{Footnote 92}

While, if the prescribed conditions are fulfilled, minors can sometimes act autonomously, in other jurisdictions they can validly conclude contracts with parental consent and/or other authorization. Occasionally, minors may act autonomously, but parents have the right to rescind the contract retrospectively.

3.2.3 Criminal and Civil Liability

Also, in most legal systems, children are criminally responsible, in some from rather young ages and in others later, with the conditions as well as consequences varying considerably.^{Footnote 93} Adults and minors alike may be held liable for wrongful acts.^{Footnote 94} If their on- or offline activities inflict harm on others, they may have to pay damages for injuries,^{Footnote 95} be they bodily^{Footnote 96} or otherwise, for instance in severe cases of cybermobbing.^{Footnote 97} Additionally, parents may be liable for acts of their children, if they have not sufficiently supervised them, with the respective standard for proper supervision dependent upon the legal regimes and applicable laws.^{Footnote 98} Thus, for example, in German law, the scale of sufficient supervision is related to what reasonable parents must expect according to the age, character, and inclination of the child. Parents must also take into account the growing personal responsibility of the child as well as specific circumstances, such as the local environment, the imminent danger of third parties, the predictability of the damaging behavior, and the reasonableness of a measure. They then are obliged to observe, instruct, and warn their children or impose prohibitions in order to avoid damages to third parties.^{Footnote 99} Again, all of this may apply to both offline acts, such as scratching cars,^{Footnote 100} and online acts, such as potential privacy violations that third parties may suffer through the child’s use of direct messenger apps like WhatsApp.^{Footnote 101}

3.2.4 Decisionmaking Capacity in Personal Matters

Furthermore, decisions in some contexts are deemed to be so personal and linked to fundamental rights, like those related to religion, physical and mental integrity, or privacy, that minors are often granted at least some power to act despite not having reached majority.

Thus, with regard to religion, a prominent example is the freedom of choosing the religious denomination which was granted to children in Germany by the Law on the Religious Education of Children (RelKErzG) of 1921. According to Sec. 5 (1), when children have reached the age of 14, it is up to them to decide which religious denomination they wish to belong to. If the child has reached the age of twelve, they may not be brought up in a different denomination than before against their will. Comparable rules apply in Austria.^{Footnote 102} Elsewhere, age limits for minors to independently decide their confession are set somewhat higher at 15 or 16 years,^{Footnote 103} or require parental consent until the child has reached the age of majority.^{Footnote 104} In most European jurisdictions, changing religion is not regulated by law at all, though.

Moreover, the increasing maturity of adolescents is widely acknowledged in one way or another with regard to decisions about medical treatment or reproductive health, which may include seeking advice on or concluding contracts for medical treatment. In some countries, the decision making capacity depends inter alia on age, such as in Denmark^{Footnote 105} and Spain^{Footnote 106} where the minimum age at which children can consent to medical treatments without parental approval is 15 and 16, respectively. In other countries, there is no specific age requirement for consent, but the capacity depends upon the minor’s maturity in the individual case, as is found in Germany,^{Footnote 107} Switzerland,^{Footnote 108} and Sweden.^{Footnote 109} Moreover, regarding medical decision making, it is not uncommon that minors, despite having reached the prerequisite age or maturity, are not yet granted full autonomy. Instead, it is often regarded as a co-responsibility of children and parents.^{Footnote 110} Here, the parents, with the child’s consent, may be the decision makers, or conversely, the child may make decisions with parental consent. The degree of autonomy may also depend upon the consequences of the decision. However, this might go both ways: The more far reaching they are deemed, the greater the need for protection or self-determination may be assumed. This is also why it is often highly controversial to determine in which cases there is actually a single or co-responsibility.^{Footnote 111}

Furthermore, minors may also be granted some decision making capacity regarding the publication of their pictures, which may occur in print media as well as in the digital sphere, where they may be posted or shared by family, friends, or minors themselves on websites, social media, or in group chats. In Germany, concerning the publication of pictures, minors are, in the absence of a statutory provision, generally deemed to be able to validly consent if they possess the respective cognitive faculty.^{Footnote 112} This is normally presumed to be the case starting at age 14.^{Footnote 113} It is predominantly assumed that from then on, both the minor’s as well as their parents’ consent are required.^{Footnote 114} In other countries, such as Spain, minors may exercise the right to their own image themselves when they are sufficiently mature, with this right thus being excluded from parental representation.^{Footnote 115}

3.2.5 Consent to Use Data

Closely linked to the question of consent to the publication of pictures is the question around the consent to use data, which in addition to being relevant in analogue contexts is especially pertinent for the digital world where it is often a prerequisite for participating. Since 2018, EU data protection law (General Data Protection Regulation, GDPR) has established 16 as the age when, in relation to the provision of information society services directly to a child, the child’s consent for disclosure of personal data, such as name or date of birth, is sufficient.^{Footnote 116} Up until that age, such processing of data is only lawful if the consent is given or authorized by the holder of parental responsibility.^{Footnote 117} The introduction of a specific minimum age has impacted the previously existing vast variety of national legislation, as it introduced a harmonized presumption of the capacity to consent, at least starting at age 16.^{Footnote 118} For example, neither German, French, nor British data protection law previously had fixed age limits on the ability of minors to consent to the processing of their data.^{Footnote 119} In German law, it was based on the capacity of the minor to understand the implications of the decision.^{Footnote 120} However, EU law still does leave some discretion for different national age limits as low as 13 years. A number of Member States have already made use of the opening clause in Art. 8 (1) 3rd st. GDPR and adopted a different age limit,^{Footnote 121} for example 13 years in Sweden,^{Footnote 122}14 years in Austria,^{Footnote 123} and 15 years in Greece.^{Footnote 124}

While setting specific age limits, like the GDPR does, instead of individually assessing a minor’s maturity may be particularly suitable for digital verification, the concrete design of these methods is the linchpin for a sufficient protective effect. Whereas in the analogue world a salesperson can easily check the age of a minor when signing a contract by asking for identification, this is problematic in the digital world due to data protection regulations. Currently, for example, several social network providers use a simple query of age. If entering a date of birth or ticking a box suffices, age limits can be easily circumvented, and the desired protection will not be achieved. Here, one could consider adapting the verification method to the potential consequences for the child. It thus might be justified that in order to use additional functions on social networks, such as purchasing add-ons in the app or sharing images, another method of verification comes into play, such as verification by submitting an identity card in person (post ident) or even by turning on one’s webcam (video ident).^{Footnote 125} However, the implemented methods may not be disproportionate and must sufficiently take all interests into account. While there must be an adequate level of protection for children, no excessive demands may be placed in order to provide services this way.

3.3 Diversity of Regulations Regarding Minors’ Evolving Capacities

A comparative overview of legal regulations regarding the increasing recognition of minors’ autonomy has revealed that there are considerable differences regarding ways to regulate this in various on- and offline contexts. First, this diversity concerns the way in which children’s evolving capacities are determined: One way is by setting specific age limits, with age serving as a proxy for maturity. This assumes that both cognitive capacity and the ability to act increase with age. With a view to legal certainty, individual differences are disregarded. Here, we find a wide range of different age limits below the age of 18 for specific issues. The alternative is to assess the capability of decision making on a case-by-case basis, thereby taking into account both the individual capacities of the respective minor as well as the specific transaction or decision in question. A case-by-case analysis often comes into play when issues concerning the minor’s constitutional rights are at stake and the ensuing decision could have potentially serious consequences for the minor. All methods of determining the evolving capacities, be it age or maturity, similarly require some sort of verification of the conditions, either by a public authority, the contracting partner, or by other means—and may thus prove to be more or less suitable in different contexts. A case-specific assessment of the determination of maturity is almost only conceivable in an analogue context and often requires comparatively costly resources, such as the opinions of experts. Additionally, age may prove to be difficult to verify in online contexts.

The other vital difference regarding the legal recognition of minors’ evolving capacities concerns the question of who gets to decide when minors are granted rights before reaching majority: The first option is that they may be given unbounded responsibility instead of their parents. This assumes that in specific areas, such as those that touch on fundamental rights, the minor is mature enough to decide themself. The other option is to provide for a co-responsibility of children and parents, which can take the form of requiring the child’s consent to the parents’ decision. Or parental consent might be necessary for the child’s own decision to take legal effect.

4 Conclusion

New media have a fundamental impact on families and their lives. While the digital transformation is associated with tremendous new possibilities and chances for children, it also entails substantial risks to them. With regard to the position of children in law, there has been a significant paradigm shift, from children as objects to holders of rights, as prompted by the UNCRC. This shift has resulted in their recognition as autonomous subjects, which extends to the analogue as well as the digital world. Nonetheless, since children are initially not able to exercise rights themselves, this lies primarily with their parents. However, the law is required to take the child’s evolving capacities into account, again both in analogue and digital contexts. Thus, minors may be emancipated before reaching majority. But, as has been shown, if children remain under parental responsibility until majority, as is the rule, their increasing abilities are commonly recognized in various legal realms. This concerns their relationship with their parents, as holders of parental responsibilities, as well as their relationship with third parties, with some regulations on the supranational level, like the EU’s GDPR, and many others like family, contract, copyright, and privacy laws on the national level. While such legislation is generally applicable in both on- and offline contexts, provided that the respective specifics are considered, some areas of the law, like the right to privacy, are by nature more relevant in the digital sphere than others.

With regard to how the increasing recognition of minors’ autonomy is regulated in various on- and offline contexts, one encounters remarkably diverse solutions. The determination of maturity, by setting an age or by individual assessment, as well as the degree of autonomy, be it full or co-responsibility, may vary fundamentally depending on the specific legal area, be it contracting, medical decision making, the publication of pictures or the disclosure of data. Thus, different legal realms may call for different solutions. Also, some may be more appropriate in the analogue or in the digital sphere. However, also concerning the same matters, the solutions may differ from one legal system to another with their respective legal cultures affecting the delicate process of balancing the degree of autonomy and the requisite amount of protection.

As a result, all of this may well spark some tension: On the one hand, a certain homogeneity of legal regulation regarding the digital sphere on the supranational level may seem desirable. Thus, the specifics of the digital world can call for certain ways to regulate matters, with regard to technological requirements, or due to both the special relevance of adolescents’ digital participation as well as its particular perils. Also, with businesses or platforms operating on a European or global level, a degree of uniformity may appear beneficial. On the other hand, the necessary coherence between the respective normative orders of the digital and the analogue sphere must be retained. In consequence, this may exert a certain pressure towards harmonizing the provisions with regard to the legal recognition of the evolving capacities of minors within a specific legal field, like contract law. However, at the same time, attention must be paid towards the requisite coherence of norms within the respective national systems. It has to be kept in mind that different spheres of the law are interrelated, for instance, the legal capacities of minors vis-à-vis third parties may be reflected in the recognition of the growing capabilities of minors in the parent–child-relationship and vice versa. Resolving these points of tension is a challenging task that profits from a comparative perspective.

Notes

1.
For details, see Thimm: Mediatized Families, in this volume.
2.
For an example on how the Portuguese legal system approaches this phenomenon, see Távora Vítor: Banning Children’s Image Online, in this volume.
3.
For details from the German perspective, see Kutscher: Positionings, Challenges, and Ambivalences in Children’s and Parents’ Perspectives in Digitalized Familial Contexts, in this volume.
4.
For a discussion of audience restrictions in the framework of EU data protection and German art copyright law, see Kaesling: Persönlich, familiär oder öffentlich? in: Croon-Gestefeld/Korch/Kuschel/Sarel/Scholz (eds.): Das Private im Privatrecht, 2022, pp. 151–174.
5.
For an overview, see Slavtcheva-Petkova/Nash/Bulger: Evidence on the extent of harms experienced by children as a result of online risks, Information, Communication & Society, 18(1), 2015, pp. 48–62.
6.
See Autenrieth: The Case of “Sharenting”, in this volume.
7.
Raised e.g. by Livingstone/Stoilova/Nandagiri: Children’s data and privacy online, 2018, p. 20; Nottingham: ‘Dad! Cut that Part Out!’, in: Murray/Blue Swadener/Smith (eds.): The Routledge International Handbook of Young Children’s Rights; Kaesling: Children’s Digital Rights, in: Marrus/Laufer-Ukeles (eds.): Global Reflections on Children’s Rights and the Law, 2021, pp. 183–196, at p. 190.
8.
See Blecher-Prigat: Lost Between Data and Family? in this volume; for a parental view on sharenting and the privacy rights of kids, see Ross/Livingstone: Sharenting, Popular Communication, 15(2), 2017, pp. 110–125; in regard to the German legal discussion, see e.g. Rake: Kinderrechte und Sorgerechtsbefugnisse bei elterlichen Foto-Postings in sozialen Medien, FamRZ (Zeitschrift für das gesamte Familienrecht), 2020, pp. 1064–1070, at p. 1070; regarding sharenting and the UNCRC Kaesling: Children’s Digital Rights, in: Marrus/Laufer-Ukeles (eds.): Global Reflections on Children’s Rights and the Law, 2021, pp. 183–196, at pp. 189–190.
9.
For an overview of this phenomenon, see Davidson-Wall: “Mum, seriously!”; Steinberg: Sharenting, Emory Law Journal, 66, 2017, pp. 839–884.
10.
Cf. Archer: How influencer ‘mumpreneur’ bloggers and ‘everyday’ mums frame presenting their children online, Media International Australia, 170(1), 2019, pp. 47–56.
11.
With regard to risks and chances of digital participation for children, see Kaesling: A Rights-based Approach to Children’s Digital Participation, in this volume; Kaesling: Children’s Digital Rights, in: Marrus/Laufer-Ukeles (eds.): Global Reflections on Children’s Rights and the Law, 2021, pp. 183–196, at pp. 183–184; in particular with regard to civic learning and engagement Kaesling: The Making of Citizens, in: Neuberger/Friesike/Krzywdzinski/Eiermann (eds.): Proceedings of the Weizenbaum Conference, 2021, pp. 67–71.
12.
For smart homes, see Nash: The Rise of the Algorithmic Child, in this volume.
13.
For EU data on children’s internet use, see Holloway/Green/Livingstone: Zero to eight, p. 4; European Commission: Towards a safer use of the internet for children in the EU; for US data, see e.g. Center for Cyber Safety and Education: Children’s internet usage study; for a South African perspective, see Center for Justice and Crime Prevention: Global Kids Online.
14.
Cf. Subrahmanyam/Greenfield: Online Communication and Adolescent Relationships, Children and Electronic Media, 18(1), 2008, pp. 119–146.
15.
Cf. European Commission: How the EU protects your children online.
16.
Cf. Thimm/Nehls: Sharing grief and mourning on Instagram, Communications, 42(3), 2017, pp. 327–349.
17.
Cf. Kennedy: TikTok celebrity, girls and the Coronavirus crisis, European Journal of Cultural Studies, 23(6), 2020, pp. 857–873.
18.
Cf. Valcke et al.: Long-term study of safe Internet use of young children, Computers & Education, 57, 2011, pp. 1292–1305, at p. 1293.
19.
See Keymolen/Van der Hof: A philosophical and legal exploration of smart toys and trust, Journal of Cyber Policy, 4(2), 2019, pp. 143–159.
20.
Cf. Keymolen/Van der Hof: A philosophical and legal exploration of smart toys and trust, Journal of Cyber Policy, 4(2), 2019, pp. 143–159; Holloway/Green: The Internet of toys, Communication Research and Practice, 2(4), 2016, pp. 1–14.
21.
Cf. Leaver: Born Digital? in: Hartley/Qu (eds.): Re-Orientation, pp. 149–160, at p. 154.
22.
E.g. cases of hacked baby monitors in the United States, see Ensenat: Smart Baby Monitors, CATH. U. J. L. & TECH, 26, 2017, pp. 72–99.
23.
For an overview in regard to the German discussion around tracking providing further references, see Bundesministerium für Familie, Senioren, Frauen und Jugend (BMFSFJ): Neunter Familienbericht, Drucksache 19/27200, pp. 214 et seq. at 5.6.4.
24.
For the view of children, see e.g. Kumar/Arup et al.: Safety vs. Surveillance.
25.
In regard to ‘big data’ and data breaches affecting children in the United States, see Arewa: Data Collection, Privacy, and Children in the Digital Economy, in this volume.
26.
Cf. Dethloff/Maschwitz: Kinderrechte in Europa—wo stehen wir? FPR (Familie Partnerschaft Recht), 2012, pp. 190–194; Hart: From property to person status, American Psychologist, 46(1), 1991, pp. 53–59.
27.
For a US-American perspective, see Williams: Child Protection, Journal of Clinical Psychology, 12(3), 1983, pp. 236–243.
28.
For a UK perspective, see Sclater/Piper: “Social Exclusion and the Welfare of the Child”, Journal of Law and Society, 28(3), 2001, pp. 409–429.
29.
A Roman concept meaning the power of a Roman male ascendant, normally father or grandfather (pater familias), over descendants. For details on the concept and reach of the patria potestas, see Honsell: Römisches Recht, § 65 p. 182.
30.
Ibid.
31.
See e.g. for Europe The Commission on European Family Law (CEFL): The CEFL Principles of European Family Law Regarding Parental Responsibilities and Council of Europe: Committee of Ministers Recommondation No. R (84) 4 (adopted by the Committee of Ministers on 28.2.1984 at the 367th meeting of the Ministers’ Deputies) on Parental Responsibilities.
32.
United Nations Human Rights Office of the High Comissioner: Convention on the Rights of the Child.
33.
Cf. United Nations Treaty Collection.
34.
Ibid.
35.
For the focus on adolescents, see Committee on the Rights of the Child: General Comment No. 20.
36.
Ibid., at VIII. 47 p. 13.
37.
Ibid.
38.
Ibid., p. 11.
39.
Ibid., p. 13.
40.
For Art. 31 as underlined by Committee on the Rights of the Child: General Comment No. 17 at VI. 45 p. 14; for Art. 28, see Committee on the Rights of the Child: General Comment No. 20 at VIII. 47 p. 13.
41.
More details on children’s rights to participation in the digital world in Kaesling: Children’s Digital Rights, in: Marrus/Laufer-Ukeles (eds.): Global Reflections on Children’s Rights and the Law, 2021, pp. 183–196.
42.
See in detail UNICEF: Child Safety Online.
43.
For an overview, see Dethloff/Maschwitz: Kinderrechte in Europa—wo stehen wir? FPR (Familie Partnerschaft Recht), 2012, pp. 190–194.
44.
Cf. UNICEF: The UN Convention on the Rights of the Child: a study of legal implementation in 12 countries at 4.5.
45.
Ibid., 4.6.
46.
Ibid.
47.
For a detailed overview on how the UNCRC is incorporated in different states, see McCall-Smith: ‘To incorporate the CRC or not—is this really the question?’ The International Journal of Human Rights, 23(3), 2019, pp. 425–441.
48.
Cf. Regeringskansliet: Regeringens proposition 2017/18:186.
49.
E.g. Art. 22bis of the Belgian Constitution (from February 17, 1994, as amended on December 29, 2008) enumerates individual rights of the child: The right of the child to respect for moral, physical, mental, and sexual integrity; the right of the child to express themself in all matters concerning them; and the right to have their views taken into account in a manner appropriate to their age; as well as the best interests of the child as a guiding principle of state action are mentioned. Art. 31 of the Italian Constitution (from December 27, 1947) stipulates that the Republic protects mothers, children, and the young by adopting necessary provisions.
50.
Resulting in fundamental differences with respect to important issues such as access to comprehensive healthcare for children, see Palm: Children’s universal right to health care in the EU, Eurohealth, 23(4), 2017, pp. 3–6.
51.
Council of Europe: Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms.
52.
E.g. Art. 30 of the Italian Constitution; Art. 18 of the Constitution of the Republic of Poland (from April 4, 1997); Art. 36 of the Constitution of the Portuguese Republic (from April 2, 1976, as amended on August 12, 2005); Art. 42 of the Irish Constitution (from December 29, 1937).
53.
Pursuant to the German Constitutional Court’s (Bundesverfassungsgericht, BVerfG) decision from January 29, 2010 (1 BvR 374/09), BVerfGK (Kammerentscheidungen des Bundesverfassungsgerichts) 16, 517.
54.
Due to Sec. 1666 German Civil Code (Bürgerliches Gesetzbuch, BGB); see also German Constitutional Court’s (Bundesverfassungsgericht, BVerfG) decision from January 29, 2010 (1 BvR 374/09), BVerfGK (Kammerentscheidungen des Bundesverfassungsgerichts) 16, 517, above; in detail, see Coester: Kindeswohlgefährdung, NZFam (Neue Zeitschrift für Familienrecht), 2016, pp. 577–580, at p. 578.
55.
The requirements regarding the duty of supervision generally depend on the age, character, and comprehension of the child as well as on the concrete possibilities of supervision by the parents: The decisive factor is what reasonable parents should have done under the given circumstances, see Federal Supreme Court of Germany (Bundesgerichtshof, BGH), decision from April 11, 2013 (IX ZR 94/10), FamRZ (Zeitschrift für das gesamte Familienrecht), 2013, pp. 1121–1123.
56.
Most recently German Constitutional Court’s (Bundesverfassungsgericht, BVerfG) decision from November 19, 2014 (1 BvR 1178/14), NJW (Neue Juristische Wochenschrift), 2015, pp. 223–229.
57.
E.g. after German reunification, the Joint Constitutional Commission discussed the demand for the inclusion of children’s rights into the constitution, see Deutscher Bundestag: Bericht der gemeinsamen Verfassungskommission, BT-Dr. 12/6000 p. 55; for a detailed and comprehensive overview of the discussion in Germany, see Wapler: Kinderrechte ins Grundgesetz? in: Sachverständigenkommission 15. Kinder- und Jugendbericht (eds.): Materialien zum 15. Kinder- und Jugendbericht, 2017, pp. 45–97; on the legal policy discussion, see Kreß/Gerhardt: Kinderrechte gehören nun auch ins Grundgesetz, Zeitschrift für Rechtspolitik, 4(7), 2014, pp. 215–217.
58.
E.g. brought forward by members of the Christian Union (Christlich Demokratische Union Deutschlands (CDU) and Christlich-Soziale Union (CSU)), see Deutscher Bundestag: Kontroverse Debatte über Gesetzentwürfe zu Kinderrechten im Grundgesetz.
59.
Cf. UN Committee on the Rights of the Child: Concluding observations on the combined third and fourth periodic reports of Germany, CRC/C/DEU/CO/3–4.
60.
Cf. Hohmann-Dennhardt: Kinderrechte ins Grundgesetz—warum? FPR, 2012, pp. 185–187, at p. 187.
61.
Ibid.
62.
Deutscher Bundestag: Entwurf eines Gesetzes zur Änderung des Grundgesetzes zur ausdrücklichen Verankerung der Kinderrechte, Drucksache 19/28138; see in detail Deutscher Bundestag: Sachstand: Kinderrechte ins Grundgesetz, Az. WD 3-3000-012/20.
63.
For the legal questions arising from this draft amendment, see von Landenberg-Roberg: Der Regierungsentwurf zur Verankerung von Kinderrechten im Grundgesetz, NZFam (Neue Zeitschrift für Familienrecht), 2021, pp. 145–148; the draft amendment was not pursued further due to the lack of necessary consensus for a constitutional amendment, cf. Tagesschau: Kinderrechte vorerst nicht im Grundgesetz; Küstner: Kinderrechte nicht im Grundgesetz; in its coalition agreement, the new German federal government has agreed to enshrine children’s rights in the Basic Law.
64.
18 years is the age of majority in all European countries except for Scotland where it is 16 years, see European Union Agency for Fundamental Rights: Age of majority.
65.
For parental responsibility of parents and third parties, see CEFL: Principles of European Family Law Regarding Parental Responsibilities, Principle 3:8 and 3:9.
66.
Ibid., Principle 3:19.
67.
Ibid., Principle 3:24.
68.
E.g. in France, through a judicial decree from the age of 16 due to Art. 413-2 Code Civil (CC); see also the declaration of majority of teenage mothers through judicial decree from the age of 16 in the Netherlands pursuant to Art. 1:253 ha Dutch Civil Code (DCC), which is related to obtaining parental responsibility.
69.
Either fully e.g. in Bulgaria due to Art. 6 (4) Family Law Code or at least partially as in Denmark due to Sec. 1 (1) 2nd st. Guardianship Act.
70.
Due to Art. 11 (3) Family Act Serbia.
71.
For example, in Germany due to Sec. 112 (1) 1st st. German Civil Code (Bürgerliches Gesetzbuch, BGB); in the Netherlands through a judicial decree from the age of 16 due to Art. 1:235 Dutch Civil Code (DCC).
72.
See CEFL: Principles of European Family Law Regarding Parental Responsibilities, Principle 3:4.
73.
Regarding the moral debate, see Gabriels: ‘I keep a close watch on this child of mine’, Ethics and Information Technology, 18, 2016, pp. 175–184.
74.
Cf. Huber, in: MüKoBGB, § 1626 mn. 69.
75.
Cf. Dürbeck, in: Johannsen/Henrich/Althammer (eds.): Familienrecht, § 1632 mn. 13.
76.
Cf. Specht-Riemenschneider: Gutachten im Auftrag der Sachverständigenkommission für den Neunten Familienbericht der Bundesregierung, 2018, p. 26.
77.
Ibid.
78.
Ibid.
79.
E.g. in the United Kingdom through Sec. 3 (2), (3) Sale of Goods Act 1979, but without applicability in Scotland (repealed there by the Age of Legal Capacity (Scotland) Act 1991, Sec. 10 (2), sch. 2).
80.
As in Germany due to Sec. 110 German Civil Code (Bürgerliches Gesetzbuch, BGB).
81.
See, for instance, in the Netherlands pursuant to Art. 1:234 (3) DCC.
82.
In Austria, for example, due to Sec. 21 (2) 2nd st. in conjunction with Sec. 170 (1) Allgemeines bürgerliches Gesetzbuch (ABGB; Austrian Civil Code).
83.
Due to Sec. 107 German Civil Code (Bürgerliches Gesetzbuch, BGB).
84.
Pursuant to Sec. 110 German Civil Code (Bürgerliches Gesetzbuch, BGB).
85.
E.g. in Romania due to Art. 41 Civil Code; in Hungary due to Sec. 2:11 Civil Code.
86.
For instance, in Denmark pursuant to Sec. 42, 43 Guardianship Law.
87.
See, for example, in Latvia due to Art. 195 Civil Code and in Malta pursuant Art. 156 Civil Code.
88.
Almost identical Art. 66 Family Act Serbia.
89.
Cf. Sec. 170 (3) ABGB.
90.
Cf. Sec. 171 ABGB, 170 (2) ABGB.
91.
Pursuant to Art. 16, 19 (2), 323 1st st. Zivilgesetzbuch (ZGB; Swiss Civil Code).
92.
Due to Sec. 25 Guardianship Services Act.
93.
In the United Kingdom, children can be held liable for criminal offenses from the age of ten, Sec. 50 Children and Young Persons Act 1933, in the Netherlands from the age of 12 pursuant to Sec. 486 Code of Criminal Procedure; in Iceland, no person can be punished for an offense committed while under the age of 15, Art. 14 Penal Code.
94.
For a comparative overview of the liability of the child, see Martín-Casals (ed): Children in Tort Law, pp. 425 et seqq.
95.
For the scope of liability of the minor, see Martín-Casals (ed.): Children in Tort Law, pp. 439 et seqq.
96.
As in the case of a 16-year-old in London having to pay a compensation of £600 after he was found guilty of racially aggravated grievous bodily harm against a Singapore student, see BBC: Coronavirus: Boy sentenced for racist street attack.
97.
See e.g. Landgericht (LG; Regional Court) Memmingen, decision from February 3, 2015 (21 O 1761/13), BeckRS (Beck-Rechtsprechung) 2016, 2120, where in the case of massive insults to a classmate using a fake internet account on “Facebook”, which required psychotherapeutic treatment, compensation for pain and suffering in the amount of 1500 € was granted.
98.
For an overview of parents’ liability, see Martín-Casals (ed.): Children in Tort Law, pp. 441 et seqq.
99.
See German Federal Supreme Court (Bundesgerichtshof, BGH), decision from November 15, 2012 (I ZR 74/12), GRUR (Gewerblicher Rechtsschutz und Urheberrecht), 2013, pp. 511–516; see also the analysis of the decision by Dreier: Projecting Images of Families into the Law, in this volume.
100.
For example, in a case in which a five-and-a-half-year-old child scratched 17 cars, the German Federal Supreme Court ruled that a supervisor must ensure that a child aged 5½ is checked at regular intervals of no more than 30 min, German Federal Supreme Court (Bundesgerichtshof, BGH), decision from March 24, 2009 (VI ZR 51/08), NJW (Neue Juristische Wochenschrift), 2009, pp. 1952–1954.
101.
Cf. Amtsgericht (AG; Local Court) Bad Hersfeld, decision from March 20, 2017 (F 111/17 EASO), ZD (Zeitschrift für Datenschutz), 2017, pp. 435–437.
102.
Pursuant to Sec. 5 Bundesgesetz über die religiöse Kindererziehung (federal law on the religious education of children) 1985.
103.
In Norway, due to Sec. 3 Norwegian Act relating to religious communities of 1969 (15 years); in Switzerland due to Art. 303 (3) ZGB (16 years).
104.
In Finland, a child aged 15 or older has the right to choose their religious affiliation if the child’s custodians give their written consent. The religious affiliation of a child aged 12 or older cannot be changed without the child’s own consent due to Sec. 3 of the Finnish Religious Freedom Act, see Kurki-Suonio: CEFL: Parental Responsibilities—National Report Finland. In Denmark, a child would need parental consent for a change of religion or a withdrawal from a particular church or religion, see Lund-Andersen/Gyldenløve Jeppesen de Boer: CEFL: Parental Responsibilities—National Report Denmark.
105.
Cf. Sec. 17 (1) of the Health Act 2005, though the parents still need to be informed and included in the decisionmaking process, see Nys et al.: “Patient Rights in the EU—Denmark”, European Ethical-Legal Papers N°2, p. 17.
106.
Due to Art. 9.4 Ley 41/2002, de 14 de noviembre, básica reguladora de la autonomía del paciente y de derechos y obligaciones en materia de información y documentación clínica; see also the Netherlands, there children from the age of 16 decide themselves about medical treatments according to Art. 7:447 (1) DCC, while between the age of 12 and 16 years, there is a co-responsibility with their parents, cf. Art. 7:450 (2) DCC.
107.
Cf. German Federal Supreme Court (Bundesgerichtshof, BGH), decision from December 5, 1958 (VI ZR 266/57), NJW (Neue Juristische Wochenschrift), 1959, p. 811.
108.
Based on Art. 305 (1) in conjunction with Art. 19c ZGB, in detail, see Büchler: Parental Decisions on their Children’s Medical Treatment in Switzerland, in: Goold/Auckland/Herring (eds.): Medical Decision-Making on Behalf of Young Children—A Comparative Perspective, 2020, pp. 39–52.
109.
See in detail Leviner: Who has the final Word? in: Goold/Auckland/Herring (eds.): Medical Decision-Making on Behalf of Young Children—A Comparative Perspective, 2020, pp. 155–166.
110.
E.g. in the Netherlands, due to Art. 7:450 (2) DCC for children from 12 to 16 years.
111.
For example, in Germany, the discussion about minors even over the age of 16 needing the consent of their parents to terminate an unwanted pregnancy is ongoing. As the decision has far reaching consequences for the minor and the expectant life, a co-responsibility is often seen as neccessary, see e.g. Lugani: Einwilligung in Schwangerschaftsabbruch durch Minderjährige, NJW (Neue Juristische Wochenschrift), 2020, pp. 1330–1332; also, in cases of non-medically indicated plastic surgery, a co-responsibility is desirable, see Spickhoff, in: MüKoBGB, § 107 mn. 14.
112.
Cf. Specht-Riemenschneider, in: Dreier/Schulze, KUG, § 22 mn. 26.
113.
See e.g. Landgericht (LG; Regional Court) Bielefeld, decision from September 18, 2007 (6 O 360/07), ZUM (Zeitschrift für Urheber- und Medienrecht), 2008, pp. 528–530.
114.
See e.g. Dasch: Die Einwilligung zum Eingriff in das Recht am eigenen Bild, p. 103; Götting: Persönlichkeitsrechte als Vermögensrechte, p. 154; Klass: Die zivilrechtliche Einwilligung als Instrument zur Disposition über Persönlichkeitsrechte, AfP (Zeitschrift für das gesamte Medienrecht), 2005, pp. 507–515, at p. 515; the German Federal Supreme Court has left this question unresolved, see German Federal Supreme Court (Bundesgerichtshof, BGH), decision from July 2, 1974 (VI ZR 121/73), GRUR (Gewerblicher Rechtsschutz und Urheberrecht), 1975, pp. 561–565.
115.
Cf. Art. 162 (1) Spanish Civil Code in conjunction with Art. 3 Act for Civil Protection of the Right to Honor, Privacy, and Image, see in detail Sanchez-Ventura: The Exercise of Minors’ Rights of Personality on Social Media, 8 Int’l. J. Juris. Fam., 2017, pp. 29–60, at p. 51.
116.
Art. 8 (1) 1st st. General Data Protection Regulation (GDPR).
117.
Art. 8 (1) 2nd st. General Data Protection Regulation (GDPR).
118.
Dethloff/Kaesling: Datenmündigkeit Minderjähriger in Europa, in: Nolte/Fischer/Senftleben/Specht-Riemenschneider (eds.): Gestaltung der Informationsrechtsordnung, 2022, pp. 537–552 with further references; for a comprehensive overview of the conception of Art. 8 GDPR, see Macenaite/Kosta: Consent for processing children’s personal data in the EU, Information & Communications Technology Law, 26(2), 2017, pp. 146–197; see also Kaesling: A Rights-based Approach to Children’s Digital Participation, in this volume.
119.
Cf. Kampert, in: NK-DSGVO, Art. 8 mn. 2; for a rights-based analysis of children’s consent, see Van der Hof: I Agree, or Do I, Wis. INT’l L.J., 34, 2016, pp. 409–442.
120.
Cf. Kampert, in: NK-DSGVO, Art. 8 mn. 2.
121.
For an overview, see European Commission: Commission Staff Working Document, Data protection as a pillar of citizens’ empowerment and the EU’s approach to the digital transition, 2020, p. 17; see also Dethloff/Kaesling: Datenmündigkeit Minderjähriger in Europa, in: Nolte/Fischer/Senftleben/Specht-Riemenschneider (eds.): Gestaltung der Informationsrechtsordnung, 2022, pp. 537–552.
122.
Due to Chap. 2, s. 4 of the Swedish Data Protection Act (Swe. lag (2018:218)).
123.
Pursuant to Art. 2 s. 4 (4) Datenschutzgesetz.
124.
Due to Art. 21 (1) of the Data Protection Act 2019 (Law 4624/2019).
125.
Tinnefeld/Conrad: Die selbstbestimmte Einwilligung im europäischen Recht, ZD (Zeitschrift für Datenschutz), 2018, pp. 391–398, at p. 393.

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Nina Dethloff

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Nina Dethloff
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Katharina Kaesling
Rechtswissenschaftlicher Fachbereich, Universität Bonn, Bonn, Germany
Louisa Specht-Riemenschneider

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Dethloff, N. (2023). Families and the Law: Taking Account of Children’s Evolving Capacities in Analogue and Digital Contexts. In: Dethloff, N., Kaesling, K., Specht-Riemenschneider, L. (eds) Families and New Media. Juridicum – Schriften zum Medien-, Informations- und Datenrecht. Springer, Wiesbaden. https://doi.org/10.1007/978-3-658-39664-0_1

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Families and the Law: Taking Account of Children’s Evolving Capacities in Analogue and Digital Contexts

Abstract

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Digital Parenting and Transnational Migration: Cultural and Emotional Drives for Digital Media Use

Think of the Parents: Parental Controls in Digital TV and Family Implications

Family Mediating Practices and Ideologies: Spanish and Portuguese Parents of Children Under Three and Digital Media in Homes

1 Impact of Digital Transformation on Families and their Lives

2 Paradigm Shift in Law: From Children as Objects to Persons with Rights

2.1 Historical Perspective

2.2 Recognition of Children’s Rights

2.3 Children, Parents, and the State

3 Legal Recognition of Children’s Evolving Capacities

3.1 Principle of Parental Responsibility Until Majority

3.2 Children’s Autonomy: Different Legal Realms and Rules

3.2.1 Exercise of Parental Responsibility

3.2.2 Limited Legal Capacity

3.2.3 Criminal and Civil Liability

3.2.4 Decisionmaking Capacity in Personal Matters

3.2.5 Consent to Use Data

3.3 Diversity of Regulations Regarding Minors’ Evolving Capacities

4 Conclusion

Notes

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Families and the Law: Taking Account of Children’s Evolving Capacities in Analogue and Digital Contexts

Abstract

Similar content being viewed by others

Digital Parenting and Transnational Migration: Cultural and Emotional Drives for Digital Media Use

Think of the Parents: Parental Controls in Digital TV and Family Implications

Family Mediating Practices and Ideologies: Spanish and Portuguese Parents of Children Under Three and Digital Media in Homes

1 Impact of Digital Transformation on Families and their Lives

2 Paradigm Shift in Law: From Children as Objects to Persons with Rights

2.1 Historical Perspective

2.2 Recognition of Children’s Rights

2.3 Children, Parents, and the State

3 Legal Recognition of Children’s Evolving Capacities

3.1 Principle of Parental Responsibility Until Majority

3.2 Children’s Autonomy: Different Legal Realms and Rules

3.2.1 Exercise of Parental Responsibility

3.2.2 Limited Legal Capacity

3.2.3 Criminal and Civil Liability

3.2.4 Decisionmaking Capacity in Personal Matters

3.2.5 Consent to Use Data

3.3 Diversity of Regulations Regarding Minors’ Evolving Capacities

4 Conclusion

Notes

References

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