This article is written by Abhishek Sharma, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho.
Table of Contents
Introduction
Whenever any of us visits a website the terms and conditions (T&C) is one of the most important sections which usually tries to explain the legal relationship and the privacy policy between the website and the person visiting it. The T&C constitutes privacy policy, refund policies and many other details. These terms and conditions are listed on the website and are required to be accepted by the person transacting through it before he could use all the options available on the website. The particulars of the website may vary from business to business. A website is visited by persons of all age groups whether he/she is a minor or major, literate or illiterate. The kids are less likely to read about the terms and conditions of the website and can easily fall for the smart tactics used by the owners of the website. The potential data available about you can hurt you later, which otherwise the adults are savvy enough to see through. Therefore, let us understand the applicability of website terms and conditions to minor users.
Definition of minors
As per the Indian Majority Act, 1875, the age of majority in India is specified as 18 years. Even a day short of the specified age of entering in a contract disqualifies the individual from being a party to it. Any individual, domiciled in India, who has not attained the age of 18 years, is referred to as a minor.
Terms and conditions
The terms and conditions on the website basically govern the legal relationship between the owner of the website and the users transacting through it. On the internet, it becomes even more important to go through the terms and conditions of the website as it might take away your personal information which you otherwise didn’t want to share.
The terms and conditions are basically the terms which clarifies the conditions which shall govern the services that the website is providing to the users and the information which it is seeking from your end. Some quick examples are the use of the content of the website (copyright). The user must be very careful while copying the content from a website and shall be aware of the terms and conditions of the website for infringement of the terms and conditions governing the copyright law. Particular emphasis must be laid on the liability clause which shall arise from the breach of the terms and conditions of the website.
Website terms and conditions for minor users
Generally, it is regarded that the use of a website is available to those individuals who could enter into a contract and can legally understand the terms and condition of the contract in accordance with the provisions of the Indian Contract Act, 1872. Somewhere, if a child is below the age of 18 years, he may need the involvement of a parent or guardian to access the website because he is unable to understand the exact terms and conditions of the website.
Whereas if a website is specially designed for the young audience, under 18 years old, it is imperative that the website owner has a proper mechanism which can properly moderate the content which including requiring parental permission or maybe access the content by the help of guardian’s Id and Password to keep a watch on the content which can eventually reduce down the liability in case of litigation.
Personal Data Protection Bill, 2019
The Indian government introduced in the Lok Sabha the Personal Data Protection Bill, 2019 on 11 December 2019 which was subsequently sent for review to a joint parliamentary committee to check the provisions of the Act. It is very pertinent to note that Chapter IV, Section 16 of this bill deals with the personal and sensitive data of the children. The provisions of this section require that data present on the website should verify the age of the children and obtain the consent of the parent or the guardian of the child before he or she could access the website to avoid any further complexities.
The bill like most Indian laws has classified children as the individuals who have not attained the age of 18 years. However, the bills say that the manner in which the verification process shall be done will be specified through regulations. The important point to note in the process of verifying the person’s age, a fiduciary could end up collecting data about children. It will be very important to note that the data collected for verifying the information should not be used for any other purpose.
The requirement for parental consent should be looked at in terms of the overall societal context of the children. Moreover, a person’s age doesn’t tell the entire story. We should also look at physiological, sociological and other relevant factors when we consider children’s privacy. The current moderns’ times and global ecosystem has adopted technological tools that have really helped the children to grow and gain better understanding of the digital space. Adolescents who are generally termed as children between the ages of 16 to 18, often have a comprehensive understanding of their activities. Hence, there is a clear need of appropriate legislation and policy frameworks that can act as a tool to protect and balance children’s right to privacy and protect their online activity. While Indian laws have come up with a legislation to protect the rights of minors, it should also look for requiring parental consent for all the online activity.
Consenting to terms and conditions
A lot of people agree to the terms and conditions without even reading them. They simply click on the “accept or agree” button to quickly enter the website without thinking about the consequences. Never mind that we are handing out our sensitive personal information to anyone who asks. A Deloitte survey of 2,000 U.S. consumers in 2017 found that 91% of people consent to terms of service without reading them. For younger people, ages 18-34, that rate was even higher: 97% did so. The exact data on India is not available but considering the illiteracy rate and other factors, the situation cannot be considered to be better in India as well.
Eighteen-year-old Siddhanth Batra had secured an All India Rank of 270 in JEE Advanced 2020. He was accepted in the first round of JEE Advanced counselling for electrical engineering at IIT-Bombay. It was completed on October 18 and Batra also received a confirmation letter from the institute.
On October 31, while looking for updates on his admission, Batra came across a link that read “withdraw from seat allocation and further rounds”. He clicked on it assuming he did not need to complete any further process.
To his surprise, the teen found his name missing from the list of students on November 10. When he approached the authorities at IIT-Bombay, he was told it was due to his “own mistake”.
Now , think for a second how destructive can a link turn out to be if a minor clicks on it without knowing the consequences of it.
Conclusion
Policymakers should take into account their special circumstances and needs, and possibly treat them as a class of individuals separate from both children and adults. Online that is comparable to that of adults. Regulatory frameworks, which do not take this into consideration, end up having a negative impact on the interests of people in this age group. In 2016, approximately 44 million children in India were between 16 and 18. It is important that our laws do not restrict their ability to make use of the digital resources available to them.
References
- Advocate Jyoti Ravi Sachdeva and Associate Kantika Mukherjee, Website Policy, Limiting Liability, Copyright & Minors, 29 September 2019, available at https://www.lawyered.in/legal-disrupt/articles/website-policy-limiting-liability-copyright-minors/
- Nicole O, Minors and your privacy policy, 23 April 2020 https://www.privacypolicies.com/blog/minors-privacy-policy/
- Legal Requirements for Websites and Apps used by minor users, available at https://www.iubenda.com/en/help/5717-legal-requirements-websites-apps-children
- Nielson Norman Group, Usable testing with Minors, available at https://www.nngroup.com/articles/usability-testing-minors/
- Associate Kantika Mukherjee, A minor’s capacity top contract, available at https://www.lawyered.in/legal-disrupt/articles/a-minors-capacity-to-contract/#:~:text=As%20per%20the%20Indian%20Majority,referred%20to%20as%20a%20minor
- Rajesh Bansal and Arjun Kang Joseph, Reconciling a child’s right t privacy and autonomy, available at https://www.hindustantimes.com/analysis/reconciling-a-child-s-right-to-privacy-and-autonomy/story-FbpCPhr377diNTkawu5x6K.html
- Dear IIT, Losing admission for clicking the wrong link is a severe punishment, available at https://in.news.yahoo.com/dear-iit-losing-admission-clicking-192145575.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAMQp-RiwFCusv8CLJk0QYyNEnaHM10RBmB6rSozY8H7nLsoFD6yQifImERnR e K b RGh0Ew0SIYQhF78iQCGmkZdupmnk7iP2sK8R2xlAN8OHGk7dAd4vSf_y1Q9NPWTL4Yb_R4N71kmKiZMvi4-1w8cgsmLN2pRUtj3i6G0sg6Orh (Last Visited 6 December 2020)
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