Significantly, the biometrics guidance takes a different approach to that recently adopted in England. The English approach has been to accept that once a minor is mature enough to give an informed consent to the use of biometrics in schools, parental consent is no longer required. Under this guidance, however, parental consent will always be necessary in the case of a minor, and if the minor is aged twelve or above they must also consent:
In the context of students attending a place of education, the Data Protection Commissioner would stipulate that the obtaining of consent is of paramount importance when consideration is being given to the introduction of a biometric system. It is the Commissioner’s view that when dealing with personal data relating to minors, the standards of fairness in the obtaining and use of data, required by the Data Protection Acts, are much more onerous than when dealing with adults. Section 2A(1)(a) of the Data Protection Acts states that personal data shall not be processed by a data controller unless the data subject has given his/her consent to the processing, or if the data subject by reason of his/her physical or mental incapacity or age, is or is likely to be unable to appreciate the nature and effect of such consent, it is given by a parent or guardian etc. While the Data Protection Acts are not specific on what age a subject will be able to consent on their own behalf, it would be prudent to interpret the Acts in accordance with the Constitution. As a matter of Constitutional and family law a parent has rights and duties in relation to a child. The Commissioner considers that use of a minor’s personal data cannot be legitimate unless accompanied by the clear signed consent of the child and of the child’s parents or guardian.Two aspects of this guidance may be significant in the future - in requiring a double lock (both parental and child consent) is there a possibility of a knock on effect in the area of marketing to children? (Where previously the consent of a child mature enough to give an informed consent would have sufficed.) Also, in imposing a strict test for determining when the use of biometrics is proportionate or necessary in education, will there be an impact on the use of biometrics in other sectors?
As a general guide, a student aged eighteen or older should give consent themselves. A student aged from twelve up to and including seventeen should give consent themselves and, in addition, consent should also be obtained from the student’s parent or guardian. In the case of children under the age of twelve, consent of a parent or guardian will suffice. All students (and/or their parents or guardians as set out above) should, therefore, be given a clear and unambiguous right to opt out of a biometric system without penalty. Furthermore, provision must be made for the withdrawal of consent which had previously been given.
The Register has a good discussion of the biometrics guidance note here. I've previously blogged about this issue here.