The Legality of Banning Underage Use of Social Media: A Critical Analysis

The Legality of Banning Underage Use of Social Media: A Critical Analysis

Introduction

Around the world, governments have turned to social media bans for various reasons—national security, public order, and the curtailing of disinformation. However, the legality of such actions is not always clear-cut. The question of whether a government can rightfully impose a social media ban often depends on the legal frameworks within a specific country, international human rights law, and the balance between security concerns and individual freedoms.

In recent years, the issue of underage use of social media has gained significant attention, prompting debates about the legality of implementing age-based bans. In particular, Australia’s recent legal developments regarding social media bans for children under 16 offer an important case study on the balance between protecting minors and upholding individual freedoms.

This article explores the legality of such bans within a broader legal framework, examining the implications for privacy, freedom of expression, and children’s rights, with particular attention to international and comparative law.

The Australian Context: A Landmark Proposal

In 2023, the Australian government introduced a groundbreaking proposal to ban children under 16 from using social media platforms, a move that has garnered significant attention both within Australia and internationally. The proposal, which is currently under review, aims to limit access to platforms like Facebook, Instagram, TikTok, and Snapchat for minors, citing concerns over the negative impact these platforms can have on the mental health and well-being of young users. Proponents of the bill argue that limiting social media use for underage individuals would protect them from cyberbullying, exploitation, and the psychological effects associated with excessive screen time, including anxiety and depression.

The legislation suggests that social media companies would be required to implement stringent age verification mechanisms to ensure that only those over 15 can access these platforms. However, it has raised significant legal questions about the appropriateness and fairness of restricting access to platforms that many minors rely on for educational, social, and recreational purposes.

Legal Foundations of Age-Based Social Media Bans

At the heart of the debate surrounding underage social media bans is the balance between protecting minors and safeguarding fundamental rights such as freedom of expression and privacy. These rights are enshrined in international human rights law, including the Universal Declaration of Human Rights (UDHR), which guarantees the right to freedom of expression (Article 19), and the Convention on the Rights of the Child (CRC), which recognizes children’s rights to information and participation.

1. Freedom of Expression and Privacy Concerns

One of the core challenges of any underage social media ban is its potential infringement on the right to freedom of expression. Article 19 of the UDHR protects the freedom to seek, receive, and impart information and ideas through any media. The restriction of access to social media platforms for those under 16 years of age could be viewed as an infringement of this right. Moreover, platforms like TikTok and Instagram have become essential tools for young people to express themselves, build communities, and even engage in entrepreneurial activities. By blocking access, governments may inadvertently limit opportunities for self-expression and socialization.

Furthermore, privacy rights also come into play. The Convention on the Rights of the Child, which Australia has ratified, asserts that children should be able to access information in a manner appropriate to their age and maturity (Article 17). The use of social media allows children to access and share information that may be of educational value, such as news, academic resources, and even advocacy work. While there are risks associated with minors engaging with social media, outright bans may hinder the positive uses of these platforms.

2. Children’s Rights to Protection and Welfare

On the other hand, the argument for age-based restrictions is grounded in the notion of children’s rights to protection. The CRC underscores the state’s duty to protect children from potential harm, particularly when it comes to media that may expose them to exploitation, bullying, or harmful content. Social media platforms have long been criticized for their role in amplifying issues such as cyberbullying, exposure to explicit content, and the promotion of unhealthy beauty standards. In Australia, the 2021 Royal Commission into the Protection of Children from Sexual Abuse highlighted the need for stronger protections for children in digital spaces, particularly concerning privacy breaches and online predators.

The use of social media can also have detrimental effects on mental health. Studies have shown that excessive social media use is linked to anxiety, depression, and body image issues among teenagers. A 2020 Australian study conducted by the Telethon Kids Institute found that adolescents who spent more than three hours per day on social media were more likely to experience emotional distress. This evidence provides a compelling argument for stricter regulations on underage access to social media, as it aims to protect children from these well-documented risks.

Comparative Legal Perspectives: Global Responses to Underage Social Media Use

Australia’s proposed ban on social media for minors under 16 is not an isolated incident; it reflects a broader global trend toward regulating online spaces for younger users. Different countries have taken various approaches to managing children’s access to social media, with varying degrees of success and controversy.

1. European Union and the General Data Protection Regulation (GDPR)

In the European Union, the General Data Protection Regulation (GDPR) sets clear guidelines regarding the age of consent for processing personal data. Under Article 8 of the GDPR, children under the age of 16 cannot provide consent to data processing without parental consent, a measure aimed at protecting minors from potential exploitation by online platforms. While the GDPR does not explicitly ban social media access for minors, it places the onus on companies to enforce age restrictions and obtain parental consent. In this regard, Europe emphasizes the need for parental control and oversight, rather than outright bans.

2. United States: The Children’s Online Privacy Protection Act (COPPA)

In the United States, the Children’s Online Privacy Protection Act (COPPA) regulates online services directed at children under 13 years of age, requiring platforms to obtain parental consent before collecting personal data from minors. While COPPA does not impose a complete ban on underage social media use, it does impose strict regulations on how companies must handle children’s data. The United States, however, has not moved toward complete social media bans, focusing instead on improving privacy protections and raising awareness about the risks associated with social media use.

3. China’s Strict Social Media Regulations

In China, the government has taken a more restrictive approach. In 2021, China introduced a regulation that limits minors’ access to online gaming and social media to just 90 minutes per day, in an effort to curb gaming addiction and protect the mental health of young people. This policy, which applies to both social media and online gaming, represents one of the most aggressive forms of regulation aimed at limiting screen time for minors. While this policy has been praised by some as a necessary step to protect youth, it has also raised concerns about state control over personal freedoms and parental rights.

Legal Challenges and Considerations

The legality of an underage social media ban raises several questions. In Australia, the proposal would need to navigate several constitutional and human rights issues, including whether such a ban infringes upon the right to freedom of expression and whether it adheres to international human rights law. Australian courts and lawmakers would need to balance these rights with the legitimate concerns for children’s safety and well-being in the digital age.

Moreover, there is the challenge of enforcement. Given the global nature of social media platforms and the ease with which minors can bypass age verification mechanisms, enforcing such a ban would require significant resources and cooperation from tech companies. The difficulty of enforcing such a ban could undermine its effectiveness, as minors can easily circumvent age restrictions by using falsified birthdates or accessing platforms through their parents’ accounts.

A Delicate Balance Between Security and Freedom

The legality of social media bans remains a complex and evolving issue. While governments may argue that such actions are necessary for national security and public order, these measures must be carefully balanced against the fundamental human right to freedom of expression. Courts around the world, from India’s Supreme Court to the European Court of Human Rights, continue to grapple with this balance, often siding with the notion that government-imposed restrictions should be narrowly tailored, transparent, and subject to judicial oversight.

For example, in the case of Handyside v. United Kingdom (1976), the European Court of Human Rights upheld the principle that freedom of expression is not absolute, and restrictions can be imposed in certain circumstances. However, the Court also emphasized that any such restrictions must be “necessary in a democratic society,” and that governments must demonstrate a pressing social need for the ban.

As social media becomes an ever more essential part of global communication, the legal landscape surrounding its regulation will continue to evolve. The challenge will be finding a solution that protects both national security and personal freedoms—without undermining the principles that form the foundation of democratic societies.

Conclusion

The legality of banning underage use of social media raises complex questions at the intersection of children’s rights, privacy, freedom of expression, and state protection. While the concerns driving the proposal—such as the mental health risks associated with social media use and the potential for online harm—are valid, the balance between safeguarding minors and upholding fundamental rights must be carefully considered. As global legal frameworks continue to evolve, the challenge will be to create policies that protect young users while ensuring that their access to valuable online resources and their freedom of expression are not unduly restricted.