How is consent and data collection from minors best addressed?

comercio datos personales menores

How is consent and data collection from minors best addressed?


Data collection

Data collection

Data is a collection of facts, figures, objects, symbols, and events gathered from different sources. Organizations collect data with various data collection methods to make better decisions. Without data, it would be difficult for organizations to make appropriate decisions, so data is collected from different audiences at various points in time.

For instance, an organization must collect data on product demand, customer preferences, and competitors before launching a new product. If data is not collected beforehand, the organization’s newly launched product may fail for many reasons, such as less demand and inability to meet customer needs. 

Although data is a valuable asset for every organization, it does not serve any purpose until analyzed or processed to get the desired results.

Data collection methods are techniques and procedures used to gather information for research purposes. These methods can range from simple self-reported surveys to more complex experiments and can involve either quantitative or qualitative approaches to data gathering.

Some common data collection methods include surveys, interviews, observations, focus groups, experiments, and secondary data analysis. The data collected through these methods can then be analyzed and used to support or refute research hypotheses and draw conclusions about the study’s subject matter.

The right to the protection of personal data: origin, nature and scope of protection.

 Origins and legal autonomy

The approach to the study of any right with constitutional status requires, without a doubt, a reference to its origins, for which, on this occasion, the generational classification of human rights developed at a doctrinal level will be very useful.

In general, historically the recognition of four generations of fundamental rights, individual or first generation rights, has prevailed; public freedoms or second generation rights; social or third generation rights; and rights linked to the emergence of new technologies and scientific development, classified in the fourth generation, these have corresponded to ideological and social moments with their own characteristics and differentiating features.

In particular, the fourth generation is presented as a response to the phenomenon known as “liberties pollution” , a term coined by some authors to refer to the degradation of classic fundamental rights in the face of recent uses of new technology.

Indeed, the technological development that has occurred since the second half of the 20th century has shown the limitations and insufficiency of the right to privacy – first generation right – as the only mechanism to respond to the specific dangers contained in the automated processing of personal information. , which is why starting in the seventies, the dogmatic and jurisprudential construction of a new fundamental right began to take shape: the right to the protection of personal data.

From a theoretical point of view, the reformulation of the classic notion of the right to privacy no longer as a right of exclusion, as it had initially been conceived, but rather as a power to control information relating to one itself, represented a clear breaking point in the conceptualization that had been maintained on it until that moment.


On the other hand, in the jurisprudential context, the legal conformation of this right – which was classified as the right to informational self-determination – originates in a ruling issued by the German Federal Constitutional Court in 1983, declaring the unconstitutionality of a law that regulated the demographic census process at that time. In contrast, Chilean jurisprudence was particularly late in the configuration of the right to the protection of personal data, since its first approximation occurred in 1995, when the Constitutional Court linked it, precisely, to the protection of privacy.

It is true that the right to privacy constitutes an important, if not essential, antecedent in terms of the formation of the right that is the object of our study; however, this does not mean that both should be confused, an issue that in its moment sparked countless debates. Some authors, for example, stated that the right to the protection of personal data constituted a form of manifestation of the particular characteristics that the right to privacy acquires in the computer age, denying the autonomy that it is possible to attribute to it today.

From our perspective, and as the Spanish Constitutional Court was responsible for announcing at the beginning of this century, two fundamental rights closely linked to each other, as well as clearly differentiated, coexist in our legal system: the right to privacy and the right to the protection of personal data. With the first, the confidentiality of the information related to an individual is protected, while with the second the proper use of the information related to a subject is guaranteed, once it has been revealed to a third party, since the confessed data It is therefore not public and, consequently, cannot circulate freely.

Thus, the legal power to have and control at all times the use and traffic of this information belongs entirely to its owner. In other words, the fundamental right to data protection does not constitute a right to secrecy or confidentiality, but rather a power to govern its publicity. In this way, while the right to privacy would be a power of exclusion, the right to protection of personal data is consecrated, instead, as one of disposition.

In accordance with what was stated  above , the latter seems to be the position finally adopted by the Chilean Constitution. In this regard, it is worth remembering that the Organization for Economic Cooperation and Development (OECD) pointed out, in 2015, that our country was in compliance with its personal data protection regulations, pointing out that among its member states, only Chile and Turkey had not yet perfected their legislation on the matter.

On this level, the reform of article 19 number 4 of the constitutional text was framed, which since June 16, 2018 has assured all people “ respect and protection of private life and the honor of the person and their family.” , and also, the protection of your personal data “, adding that ” the treatment and protection of these data will be carried out in the manner and conditions determined by the law .”

As can be seen, the new wording of the Chilean fundamental norm now enshrines the right to the protection of personal data in an autonomous and differentiated manner, a trend adopted for several years by the fundamental charters of other countries in Europe and Latin America, with Chile joining the this majority trend.

 Natural capacity as an essential element for the exercise of personality rights

The tendency followed by the Chilean legal system to give relevance to what is known as natural capacity – or maturity – as an essential substrate on which to base the exercise capacity of children and adolescents, is especially marked in the field of the rights of personality – or in other words, in the field of extra-patrimonial legal acts, and it is precisely in this context that the first voices in favor of maintaining that, although the dichotomy “capacity for enjoyment/capacity for exercise” could still have some relevance in the patrimonial sphere, it was, on the other hand, unsustainable in the extra-patrimonial personality sphere.

It seems that denying the capacity to exercise personality rights in the space when the subject, despite his or her chronological age, meets the intellectual and volitional conditions sufficient to exercise them on his or her own, becomes a plausible violation of dignity and freedom. free development of the personality of the individual, recognized in article 1 of our Constitution as superior values ​​of the regulatory system ( People are born free and equal in dignity and rights ).

child or adolescent

Certainly, it has been discussed whether the distinction between the capacity to enjoy and the capacity to exercise is applicable in the field of personality rights, since the enjoyment or exercise of these rights is personal. Hence, it is difficult to speak of authentic legal representation in this environment, with this representation being very nuanced or being configured rather as assistance or action by parents or guardians/curators in compliance with their duty to care for the child or adolescent especially justified when it comes to avoiding harm.

Given the above and in accordance with the principle of  favor filii , the implementation of personality rights by their legitimate holders can only be limited when their will to activate them is contrary to preponderant interests in attention to the full development of their personality, in the same way that the will of their representatives can be limited   when their intervention is contrary to the interests of the child or adolescent.

Well, it is precisely in that context, in which the idea of ​​adopting the criterion of sufficient maturity, self-government or natural capacity emerges strongly, as a guideline to follow to delimit the autonomous exercise of personality rights, avoiding With this, the person who has not yet reached the age of majority is simply the holder of the right, but cannot, however, exercise it. In this way, the general rule becomes that the girl, boy or adolescent who is sufficiently mature can freely dispose of her or his rights.

With the above meaning, it should be noted that in this new scenario the question is limited to specifying what is meant by showing sufficient maturity, since we are faced with an indeterminate legal concept around which there is no unified legal definition. Each boy and girl is different, and therefore it is very difficult to establish when or not they have the necessary exercise capacity, due to their intellectual development, to be the master of their own person.