Spanish government proposes new digital safeguard measures for minors
Published on 24th Jul 2024
A draft bill promotes minors' positive use of digital environments in areas such as education or social interaction
The rapid technological advances that shape society have particularly impacted on the personal and social development of minors. The universalisation of access to the internet and different digital tools has opened up endless opportunities for learning, communication and entertainment. However, this new reality also presents challenges that cannot be ignored.
The inappropriate use of digital technologies by minors, or even by adults in relation to them, can have serious consequences. According to the "Internet Segura for Kids" (is4k.es) initiative of the Spanish National Cybersecurity Institute (INCIBE), potential harms for minors include psychological and emotional damage, physical health problems, misinformation, manipulation and creation of false beliefs, adoption of dangerous or socially inappropriate behaviour, integration into harmful groups, addictions and economic damages.
Against this background, there is a need for a comprehensive set of measures to protect minors, covering areas such as consumer protection, education and health, criminal law and the audiovisual sector. The primary objective should be to promote responsible use of technologies and to protect the health, well-being and safety of minors in the digital environment.
Draft bill
On 4 June 2024, the Spanish Council of Ministers approved the Draft Bill for the protection of minors in digital environments. The regulation incorporates measures that, in a global sense, respond to the need to improve the information available to minors and families on the risks and benefits of the use of digital devices, to strengthen health care to address health problems derived from the use of these media, and to reinforce restrictions to prevent minors from accessing inappropriate content.
Measures for technological companies
Manufacturers of digital devices should include clear and accessible information on their products about the risks of accessing content that is harmful for minors. This information should be available in plain language that can be understood by people of all ages. In addition, devices should include, by default, a free parental control function that allows users to restrict access to services, applications and content inappropriate for minors.
Furthermore, the use of "lootboxes" (randomised reward mechanisms) in video games for minors is prohibited, and an effective age verification system must be implemented to ensure that only minors have access to these mechanisms. This measure was already part of the draft bill on "lootboxes" published on July 2022, which in the end did not go through the approval process.
In addition, audiovisual media services and video-sharing platforms must include visible links to the website of the competent audiovisual authority. On the other hand, the compliance with these obligation for the protection of minors from harmful content provided for in the Law 13/2022 on Audiovisual Communication Services is extended to influencers or videobloggers depending on whether if the type of service they offer can be considered linear or on-demand. This includes, for example, the prohibition of broadcasting audiovisual content containing gratuitous violence or pornography scenes.
Measures in the public sector
In the field of education, the Spanish government proposes to promote the digital education of students to ensure their integration into the technological society. The responsible and safe use of digital tools will be promoted among students, incorporating strategies for security, digital citizenship, privacy and intellectual property in teacher training.
In the health sector, this law promotes the creation of guides by the health administrations for the prevention and promotion of health in the use of these technologies among children and young people. It also incorporates individual and community actions in the programmes for the prevention and promotion of child and adolescent health that are being developed in primary care, for the early detection of possible pathologies associated with digital technologies and environments.
Modifications in the criminal field
The legislator considers it necessary to make changes to the Spanish Criminal Code, incorporating new offences and penalties to combat crimes related to new technologies. Four key amendments are incorporated:
Regulation of restraint in online environments
This penalty, which traditionally prohibits residing in certain places, approaching certain people or communicating with them, is now extended to the virtual sphere. It includes the prohibition of access or communication through social networks, forums, communication platforms or other online spaces.
Criminalisation of deepfakes
The dissemination and exhibition of deepfakes of sexual or seriously vexatious content consisting of extremely realistic images or voices generated by artificial intelligence or any other technology is condemned.
Strengthening the typification of offenses against minors' sexual freedom
Cases in which pornographic material is made available to an indiscriminate public, with the presumption that minors will be among the viewers, will be punished.
New aggravated offences
New aggravated offences related to the use of false identities through technology are established.
New minimum age for data processing
In Spain, the Organic Law 3/2018 on the Data Protection Guarantee of Digital Rights establishes 14 years as the minimum age for a minor to consent to the processing of their personal data. However, in view of the need to reinforce the protection of minors in the digital environment, it has been proposed to raise this age threshold to 16 for access to certain services, platforms and digital content.
Osborne Clarke comment
The draft bill completed its public hearing at the end of June 2024 and this has led to the positioning of some associations in favour of defending the protection of minors in the digital environment in a collective manner and from a unified European perspective so that the Spanish government's initiative is not frustrated.
Among the contributions of these associations, the importance of including specific protocols to deal with problematic behaviour, integrating a gender and intersectional perspective in prevention programmes, and ensuring the participation of specialised networks on addictions stand out.
The proposed measures are comprehensive and cover the different aspects of this complex problem. However, it is crucial to avoid falling into a simplistic stigmatisation of screens. Instead, the focus should be on the safe integration of minors into the digital world, a space with which they will have to cope in their adult life.
