Can you consent to use of your child’s data?

Can you consent to use of your child’s data?

The recent row that has erupted in relation to the public showing of a documentary that tracked the lives of the students of Ying Wa Girls’ School over a decade, highlights the issue of consent and the significance of informing data subjects of the purpose for which personal data is to be collected, and what happens when personal data is used for a different purpose. The question of consent is particularly difficult when it comes to minors.

Question:

Your 10 year old daughter participates in a study about HPV vaccinations rates in Hong Kong which collects and processes her personal data over the course of 10 years. 3 years later, the researchers notify you that they intend to publish the results of the study as part of an international project as to whether vaccination is associated with changes in teenage sexual behaviour and your daughter’s name and information will be published as part of the project. This purpose was not communicated to you nor your daughter 3 years ago. Can you consent to the use of her data for this purpose?

IP Partner Theresa Luk explains: No

Publishing your daughter’s name and information in a study involving changes in sexual behaviour is clearly different from the purpose for which the data was originally collected. Hong Kong data privacy laws do allow a data user to use personal data collected for a new purpose, if the proper consent is obtained from the data subject, but additional requirements exist if the data subject is a minor. A parent or guardian may consent to the use of a minor’s personal data for a new purpose if the minor is incapable of understanding the new purpose and the parent or guardian has reasonable grounds for believing that use of the data for the new purpose is clearly in the minor’s interest.

Additionally, even if the parent or guardian consents, the law also requires the data user to have reasonable grounds to believe that use of the data for the new purpose is clearly in the minor’s interest.

In the above scenario, the study involves a very sensitive topic and publishing your daughter’s personal information would not clearly be in her interest. Therefore, you may not give consent to the use of her personal data for such a purpose. Even if you give consent, the researchers may still not be able to use the personal data, as they would also need to show that they had reasonable grounds for believing that such use would clearly be in your daughter’s interest.

Deacons’ IP Commercial & Litigation (IPCL) team has extensive experience in advising on obtaining release for use of an individual’s personal data including image, including use of children’s personal data and obtaining consent from children / minors. Contact one of the IPCL leaders today to see how we may help and see more about our capabilities here.

The information above is for general guidance only and should not be relied upon as, or treated as substitute for, specific advice. Please contact us for specific inquiries.