(2) The prohibition referred to in paragraph (1) is not applicable if the decision is taken in the context of an agreement or is based on a provision established by or by virtue of law. That agreement or provision must contain suitable measures to safeguard the legitimate interests of the data subject defined by his/her national law or international convention. The latter person must be given at least the chance to defend his/her point of view. Representatio n of the data subject who is a child 37. (1) If the data subject is a child, his/her rights pursuant this law may be exercised by his/her parents or legal guardian unless the law states that the child may act by himself without being represented by his/her parents or legal guardian. (2) Following his/her age and capability, he/she shall be entitled to independently exercise of his/her rights. Representatio 38. n of physically, mentally or legally incapacitated data subjects (1) A data subject who is not subject to Section 37 and who is physically, mentally or legally incapable of exercising the rights given under by this Act and who is not subject to the provisions of section 37, may exercise such rights through a parent or guardian or as provided for by law or as designated by a Court of Competent Jurisdiction. . a spouse, partner , or any such person as legally declared by the law as being the guardian. b.Incapacity referred to in a above shall be proved by a physician or a person legally competent to do so. (2) (a) If such person referred to in (1) above, does not accept the charge or is in default, a specific guardian designed by the competent Court will exercise the rights of the data subject. (b) This is also valid in the case of conflict between two or more people mentioned in paragraph 1. (3) The data subject shall be entitled to the exercise of his/her rights to the furthest extent taking into account his/her capability. Draft Data Protection Bill Version 1.0 43