UK's Burnham faces tough decisions on under-16 social media ban

Full text

LONDON — As Britain’s children head back to school, its new prime minister needs to decide exactly how he wants to keep them off social media.

Britain isn’t the only country crafting a social media ban for minors. Developments in Australia and France over the break should give Burnham’s ministers and officials plenty to think about. Australia’s ban is only having a limited effect on how much kids get on to social media, while France’s ban has hit a huge legal hurdle.

In June, then-Prime Minister Keir Starmer announced plans to ban social media for under-16s — only to resign a week later and leave his successor Andy Burnham with an in-tray of unanswered questions about a policy that upends the U.K.’s current online safety regime.

MPs return to Parliament next week after the summer break, and Burnham’s government will need to decide how the ban — which is supposed to come into effect in spring — will work.

Australia

Australia was the first country in the world to introduce a social media ban for kids in December last year. Last month, the Australian government published its first wave of findings on the experiences of more than 4,000 children and families since the ban took effect.

The numbers do not show a huge drop in kids accessing social media. The proportion of under-16s holding at least one social media account fell from 52.4 percent to 42.3 percent at the three-month follow-up. Meanwhile, the proportion who reported using a social media platform (with or without an account) fell even less, from 85.9 percent to 81.5 percent.

Australia only requires age-restricted platforms to take “reasonable steps” to prevent under-16s from creating or keeping accounts. Access via logged-out experiences, for example, is permissible.

The rationale is that account-based access — and the data harvesting that comes with it — increases the likelihood of exposure to potentially harmful design features, such as algorithmic suggestions or infinite scroll.

But the U.K. could go further than Australia by casting a wider net to cover both account ownership and access. That could implicate not just the social media platforms, but internet service providers too. The previous Starmer government has already laid the groundwork by handing itself powers , via the Children’s Wellbeing and Schools Act, to force ISPs to keep kids out.

France

France was eager to pursue its own ban for under-15s, but earlier this month the country’s Constitutional Council blocked President Emmanuel Macron’s proposed social media ban , arguing the legislation would disproportionately violate children’s rights to privacy, freedom of expression, and communication.

While the U.K.’s unwritten constitution means there’s no equivalent judicial mechanism here — the Supreme Court has no power to strike down laws — the ruling across the Channel serves as a reminder that sweeping proposals can easily get gummed up in the courts.

The U.K. looks set to rely on secondary legislation to push through the ban, meaning the government can largely bypass parliamentary debate. Starmer said the reason for this was to fast-track the ban. “We’ve taken the powers to make sure we can act within months, not years,” he said.

Secondary legislation may allow the government to move faster, but it is particularly vulnerable to judicial review, and could invite an unlikely coalition of tech companies and digital rights activists to challenge restrictions via this route.

“The inevitable consequence of such broad regulatory discretion is an explosion in litigation,” Oliver Carroll, legal director at law firm Bird & Bird, previously told POLITICO .