China publishes provisions on the protection of personal data of children
On 23 August 2019, the Cyberspace Administration of China published regulations on the cyber protection of personal data of children, which came into force on 1 October 2019. China thus enacted the first rules focusing exclusively on the protection of children’s personal data.
In the regulations, “children” refers to minors under the age of 14. This corresponds to the definition in the national “Information Security Technology – Personal Information Security Specification”.
The provisions regulate activities related to the collection, storage, use, transfer and disclosure of personal data of children through networks located on the territory of China. However, the provisions do not apply to activities conducted outside of China or to similar activities conducted offline.
The provisions provide a higher standard of consent than the Cybersecurity Law of China. To obtain the consent of a guardian, a network operator has to provide the possibility of refusal and expressly inform the guardian of the following:
- Purpose, means and scope of collection, storage, use, transfer and disclosure of children’s personal information;
- Storage location of children’s personal information, retention period and how the relevant information will be handled after expiration of the retention period;
- Safeguard measures protecting children’s personal information;
- Consequences of rejection by a guardian;
- The channels and means of filing or reporting complaints; and
- How to correct and delete children’s personal information.
The network operator also has to restrict internal access to children’s personal information. In particular, before accessing the information, personnel must obtain consent of the person responsible for the protection of children’s personal data or an authorised administrator.
If children’s personal data are processed by a third party processor, the network operator is obliged to carry out a security assessment of the data processor commissioned to process the children’s personal data. He also has to conclude an entrustment agreement with the data processor. The data processor is obliged to support the network operator in fulfilling the request of the guardian to delete the data of a child after termination of the service. Subletting or subcontracting by the data processor is prohibited.
If personal data of children is transferred to a third party, the network operator shall carry out a security assessment of the commissioned person or commission a third party to carry out such an assessment.
Children or their legal guardians have the right to demand the deletion of children’s personal data under certain circumstances. In any case, they have the right to demand the correction of personal data of children if they are collected, stored, used or disclosed by a network operator. In addition, the legal guardians have the right to withdraw their consent in its entirety.
In the event of actual or potential data breaches, the network operator is obliged to immediately initiate its emergency plan and take remedial action. If the violation has or may have serious consequences, the network operator must immediately report the violation to the competent authorities and inform the affected children and their legal guardians by e-mail, letter, telephone or push notification. Where it is challenging to send the notification to any data subject, the network operator shall take appropriate and effective measures to make the notification public. However, the rules do not contain a precise definition of the serious consequences.
In the event that the data breach is caused or observed by a data processor, the data processor is obliged to inform the network operator in good time.