Research on the Determination of the Capacity for Consent in the Processing of Minors’ Personal Information

Abstract

In contemporary society, where digital platforms and smart terminals are highly prevalent, minors have become an important group in the online circulation of personal information. They frequently expose their personal information in scenarios such as online games, social media, and online education. Once personal information is improperly collected, utilized, or abused, it will cause irreversible damage to the current and future personality development, social evaluation, and property interests of minors. The Personal Information Protection Law takes “informed consent” as the core legal basis. In the context of minors, the existence and scope of “consent ability” directly affect the legal structure and responsibility allocation of personal information processing. Article 31 of China’s “Personal Information Protection Law” stipulates that when processing personal information of minors under the age of 14, the consent of their guardians must be obtained, and such information should be classified as sensitive personal information. This strengthens the special protection of this group in the system. However, from the normative structure, on the one hand, the legislation adopts “14 years old” as the formal dividing line, which is different from the capacity system of civil law; on the other hand, there is a lack of clear regulations on under what conditions minors themselves have independent consent ability, and theoretical discussions mostly focus on the guardian consent rule, while giving little attention to the consent ability of minors themselves. In this context, from the cross-disciplinary perspective of civil law and personal information protection law, this paper systematically explores the criteria for determining the consent ability in the processing of minors’ personal information and its functions. This not only helps clarify the system relationship between consent ability, capacity, and intention ability, but also helps to build a more refined framework for protecting minors’ personal information at the legislative and judicial levels. This paper intends to take the consent ability as the core analytical object, in the comparative law perspective, to sort out its dual functions and determination model, and then, in combination with the current law of our country, propose an institutional construction plan with “14 years old + intention ability” as the axis, supplemented by the allocation of burden of proof and dynamic determination mechanism.