Bill C-34's Social Media Ban for under 16s is Unconstitutional

Why the courts might, but shouldn't, permit it

The government has (finally) reintroduced a new version of an online harms bill, the Safe Social Media Act (Bill C-34). The Act does a lot, and it draws from similar regulatory frameworks in places like the United Kingdom and Australia to impose certain conditions on social media platforms in relation to a set of online harms, including: intimate content communicated without consent; content that sexually victimizes a child or revictimizes a survivor; content that induces a child to harm themselves; content used to bully a child; content that foments hatred; content that incited violence; and terrorism or violent extremism content.

On most of this harmful content there will be strong bipartisan support for the bill on principle (although we know that some areas, like the hate speech provisions, remain contested).

As with the UK’s Online Safety Act, the bill is structured to regulate social media by imposing certain duties and procedures on them - it is not designed to have government directly monitor and censor social media sites for harmful content. For this reason in my academic work I have suggested that the UK law serves as a decent model for Canada. It would be inaccurate to describe this bill, overall, as a government censorship regime, and there is little concern given the nature of the harmful content it seeks to regulate that most of the bill is compliant with the Charter of Rights and Freedoms.

These points do not stand, however, with respect to the provisions of the bill requiring that services “implement adequate age-verification or age-estimation measures designed to prevent a person under the age of 16 from being able to have an account with, or be otherwise registered with, the service.”

A social media ban on under 16s is recognized by the vast majority of experts as a blunt, ineffective, and possibly counter-productive instrument. Australia’s implementation of a similar ban has been laughably ineffective, with nearly 7 in 10 of children in the age group still in possession of accounts. And there are already negative effects for those children who have been effected, such as having less access to, and less consumption of, the news. Scholars are also concerned that a simple ban leaves some children without important social supports they have previously accessed through social media sites.

This is not to reject the harms that social media presents. For far too long, platforms have avoided responsibility for structuring their sites and creating features and algorithms designed to leverage addiction, and that not only permit but sometimes amplify harmful content. The social scientific evidence is clear that there is a wide range of negative mental health impacts that can result, from social isolation to depression to suicidal ideation. It is reasonable to think that young children are especially vulnerable, especially in terms of cognitive development.

So why would a social media ban be unconstitutional? Section 1 of the Charter explicitly allows for “reasonable limits” on rights. Surely in the face of harms to children, it should allow for measures to be taken. The answer is that while the government obviously has a sufficiently important objective for its law, and that a ban is rationally connected to that objective, it is nowhere close to minimally impairing under the famed section 1 Oakes test.

Three important rights are at stake. The first is privacy. There is no way to even get close to effective implementation of a ban without violating the privacy of all users through the bill’s requirement of “adequate age-verification or age-estimation measures.” The second is equality rights. The provision is age discrimination, blocking children from accessing parts of the Internet that have become ubiquitous for their generation, and while it seeks to prevent exposure to their harmful aspects, it simultaneously stops them from enjoying their beneficial aspects as well, and on a rather arbitrary basis (if cognitive development is a major concern, 16 is a rather arbitrary and ill-suited cut-off). The third is free expression: specifically, the free expression of the children, whose rights to communicate via any media, and to have access to information, are plainly protected under the Charter.

The bill does contain an exemption for services that establish “adequate safeguards” for children, but this measure is not, in my opinion, sufficient to save the bill. Why? Because the alternative policy measure would be to require platforms to enact sufficient safeguards to mitigate harms for all users. Rather than doing the harder work of structuring the bill to enhance its duty of care requirements (such as preventing platforms from using algorithms that artificially amplify harmful content, or regulating features we know provide unnatural and addictive spikes in users’ dopamine levels), the government is instead using a rights-violating blunt instrument of an age-based ban.

In my view, any court that has proper evidence before it of the nature of the harms at stake and the measures the government has taken - and avoided taking - in this bill, will recognize that the social media ban for children neither passes the minimal impairment test nor the ‘overall balance’ test.

Yet the temptation for judges to defer to Parliament on this issue will be significant. After all, the government will very likely point out that we have age cut-offs for lots of dangerous of harmful activities - from driving to drinking to gambling. We have decided, as a society, that adults have the intellectual and emotional capacity to make informed decisions to partake in these activities and children do not.

Yet this ignores two key differences. First, preventing children from drinking and gambling simply does not impact their rights in the way banning them from social media does. I don’t think I need to elaborate on this point. Second, there is no way for the government to enact measures to make drinking alcohol or gambling realistically ‘safer’ for children. By contrast, many experts who study the harmful effects of social media believe there is a lot more that regulation can do to make platforms substantially more safe. No one is suggesting we can eliminate harms outright. The Internet is too vast, too borderless, too complicated for that. But the government has chosen not to adopt other, more systemic policy measures to improve safety and is instead leaning on the blunt instrument of an outright ban. When that blunt instrument so severely impacts the Charter rights of children (and indeed, in the context of privacy, all users) no court should allow it to stand.

Moreover, if we recognize the harmful effects of social media for what they are, we must recognize that our concerns about mental health - including the most severe forms, like suicidal ideation - apply just as much to 17 year-olds and 35 year-olds as they do 14 year-olds. Are younger users more vulnerable as a result of development and capacity? Yes. But let’s not pretend there’s a dramatic drop in danger at the magical age of 16 in this instance.

This bill has a lot of positives. The duty of care approach, and the measures aimed at mitigating harm are a good first step. But if the government is going to take online safety seriously, the Charter compatible way of doing so is to improve safety for all users, without instruments that are bluntly destructive of expressive freedom and access to information.