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Call for uniform definition of minor in proposed Data Protection Act

Published:Wednesday | March 28, 2018 | 12:00 AMErica Virtue/ Senior Gleaner Writer

A call has been made for a uniformed definition of the term "minor" during submissions to the joint select committee on the proposed Data Protection Act (DPA) 2017 this week.

Patrick Lalor, advocacy officer for Jamaica Aids Support for Life (JASL), along with Andre Sheckleford and Justine Collins, raised the issue during their submission, stating that it was important that a clarification be made for both. Lalor said that JASL foresees problems based on the definitions in the proposed bill.

"It is commonplace in Jamaican law that a minor is defined as a person under the age of 18 years in some pieces of legislation, 16 years in others, and 16 and 18 years in different sections of the same piece of legislation. The Sexual Offences Act is one such example, where the definition of a minor varies according to section," said Lalor, during his presentation on behalf of the body which has as its clients members of groups considered vulnerable in Jamaica.

According to him, "The Law Reform Age of Majority Act allows a child who has attained the age of 16 to consent to medical treatment. Defining a minor as a person under 18 years in this piece of legislation will prove problematic as it would mean that the parents of a 17-year-old who accesses services at our facility could demand that we produce that person's health records without the consent of that person."

Meaning of 'consent' needs to be broader

Several persons appearing recently before the parliamentary committee reviewing the Data Processing Act (DPA) have called for a broadening of the definition of "consent" to include informed consent and coerced consent.

The DPA defines consent as any consent required to be given by a data subject to the processing of said data to mean "expressed consent", to be given orally or in writing.

According to Patrick Lalor, advocacy officer for Jamaica Aids Support for Life (JASL), the bill must clearly state that consent has to be given freely and not coerced, and for informed consent, there must be an understanding of the scope of the consequences. He said that the obligation must be placed on the data controller to ensure that the data subject clearly understands what he or she is consenting to and the implication of said consent.

In their submission to the committee, Andre Sheckleford and Justine Collins said that consent should be informed and specific. The two, who alternated in the presentation, argued that the requirement for oral and written consent should be removed and replaced with an unambiguous definition and that the term "express consent" was inadequate. They want consent in the case of minors to be given only by an authorised parent or guardian.