Proposed social media ban for children under 16: How might the laws work?
7 November 2024
The Federal Government has announced a proposal to ban children under 16 from using social media.
While legislation has not yet been introduced, comments from Prime Minister Anthony Albanese, a comprehensive report from former High Court Justice the Hon Robert French AC, and a draft Bill produced by the South Australian Government give us some idea of how the laws might work.
The Federal Government’s proposal to restrict social media access to children under 16 differs from the South Australian draft legislation, which proposed a ban for children under 14, and a requirement children aged 14-15 obtain parental consent.
Will these laws be effective?
It has been widely acknowledged that the proposed restrictions would be difficult to enforce, but the various challenges of enforcing such laws have been carefully considered by Mr French, one of Australia’s finest legal minds, who has suggested a model that is designed to:
- Make it more difficult for children to access social media
- Incentivise tech companies to make their social media platforms safer for children
- Empower parents to restrict their children’s use of social media
How would the laws work in practice?
The Federal Government has not yet tabled its draft legislation, but Federal Communications Minster Michelle Rowland said on 7 November that Mr French’s report has provided “invaluable” guidance. Mr French’s report proposed a model that is best understood as a duty of care that is placed upon social media companies in relation to children accessing social media.
Under Mr French’s model, social media companies would have a duty to:
- Prohibit social media access to children aged under the prescribed age;
- Take reasonable steps to prevent access to children under the prescribed age
The Federal Government has advised that the key elements of legislation will include:
- A penalty regime imposed on social media companies, not parents or children
- A positive obligation on social media companies to stop children in the restricted age range from accessing social media
- The ability to exempt some social media platforms to accommodate access to services that demonstrate a low risk to children
- The requirement that social media companies use appropriate “age assurance” technologies
- Privacy protections for information collected by age assurance technologies
- No exemptions for users who have parental consent
- No grandfathering arrangements for existing account holders
How would the two duties of care work together?
The first duty of care, to prohibit access to children, would primarily be dealt with in a reactive manner, according to Mr French’s report. That is, action can be taken against social media platforms after a child under 16 gains access to their platform. In this sense, enforcing the duty will be complaints-driven, and a remedy will be pursued in response to reports or complaints of an underage child gaining access to social media.
The second duty of care, to take reasonable steps to restrict access, is more of a systemic, proactive duty. This duty will require social media companies to take measures to ensure compliance with the laws, such as establishing “age assurance” checks.
How would these duties be enforced?
The Federal Government has announced that the Office of eSafety Commissioner will provide oversight and enforcement of the laws.
The eSafety Commissioner’s office may take actions such as conducting inspections, spot-checks, ordering compliance reports, and conducting other compliance checks. If companies are found to be non-compliant, the eSafety Commissioner might take measures such as issuing infringement notices or making applications to the Court for more severe penalties, such as injunctions, fines, and compensation.
Under Mr French’s model, if the Court was satisfied on the balance of probabilities that a social media service breached a duty of care, it could order the service to pay significant financial penalties. The Court could also order that the company pay compensation to a child who suffers mental and physical harm as a result of accessing the social media platform.
It would be a valid defence if a social media company could demonstrate that they took all reasonable steps to restrict a child’s access to social media, even if the child managed to gain access to the platform.
Could children or parents be penalised if an underage child accessed social media?
No. The only parties that can be penalised are social media platforms. Children or parents will not be liable under these laws.
How will social media companies know the age of children trying to access their platforms?
Social media companies would be required to utilise “age assurance” measures, which relates to a two-step identification process that involves:
- Age verification measures that require users to provide official identity documents
- Age estimation software that, via the use of biometric technologies such as facial or voice recognition, can estimate the age of a child.
The Federal Government has begun an age assurance trial which is testing technologies designed to place age-based limits on online material.
What is the rationale behind these proposed laws?
At the recent Social Media Summit, South Australian Premier Malinauskas said that the book “The Anxious Generation: How the Great Rewiring of Childhood is Causing an Epidemic of Mental Illness” by social psychologist Jonathan Haidt planted the seed for his mission to protect young children from the harmful effects of social media. The proposed reforms also rely on other research, particularly in the field of psychology, that suggests the cognitive development and mental health of children are being negatively affected by features of social media including:
- The addictive nature of social media apps
- Exposure to graphic violent and sexual content on social media
- Exposure to predators and scammers
- Cyberbullying that is amplified by social media
- The “filter bubble” business model of social media that can indoctrinate users with dangerous and inaccurate information
However, there was also acknowledgment among expert speakers at the summit that social media can have a positive, at times life-saving, impact on young people, especially those in minority groups such as the LGBTQ+ community. Several attendees of the summit passionately and compellingly articulated the central role that social media can play in giving marginalised people a sense of belonging and safety where they otherwise would not be able to access it “in real life”.
Do the proposed laws consider the potentially negative effects of restricting social media?
They do insofar as they will allow for “exemptions” for social media services that do not pose significant risks to young people. One of the key messages by several presenters at the Social Media Summit was that these laws could incentivise popular social media companies to create safer, child-friendly versions of their existing platforms.
Social media platforms that are primarily educational, for example, could be exempt.
In its submission to the Department of Premier and Cabinet on the Draft Children (Social Media Safety) Bill, the Law Society recommended that regard be given to vulnerable children who may rely on social media to access support services. The Law Society suggested that the exemption scheme could address some of these concerns.
Who decides which social media companies are exempt?
Mr French’s report suggests that the relevant Minister or regulator would determine which social media platforms are exempt.
The Federal Government has suggested that platforms including Instagram, Facebook, X, and Tik Tok would be covered by the ban, and that YouTube would also likely to be prohibited for children under 16.
How will “social media” be defined under the proposed laws?
Prime Minster Albanese said a new definition of an “age restricted social media platform” will be adapted form the existing definition in the Online Safety Act, and will have the flexibility to be narrowed through Regulations.
The existing definition of social media is an “electronic service” that satisfies the following conditions:
- the sole or primary purpose of the service is to enable online social interaction between 2 or more end-users;
- the service allows end-users to link to, or interact with, some or all of the other end-users;
- the service allows end-users to post material on the service;
- such other conditions (if any) as are set out in the legislative rules.
This could include instant messaging services, SMS or MMS services and chat services, in addition to services that enable users to play online games with other users. It can also include discussion forums and livestreaming platforms.
In its submission to the Department of Premier and Cabinet on the Draft Children (Social Media Safety) Bill, the Law Society suggested that consideration ought to be given to whether the definition of social media could inadvertently restrict access to texting services that young people may rely on for safety reasons, for example to communicate with their parents.
Such unintended consequences may be offset by the ability to exempt some social media services.
What will happen to the South Australian proposal?
Prime Minister Albanese said he did not want a piecemeal approach to these laws, which is why he is taking the Federal Government proposal to National Cabinet, in the hope of getting a consensus from all States. In this case, South Australia and all other States would be covered by the same legislation. However, the South Australian Bill is likely to provide guidance to the Federal Government in the drafting of its national Bill.
For all media enquiries, please contact Michael Esposito, Communications Manager on (08) 8229 0239 or via [email protected].
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