Social media sites like Instagram, Facebook and TikTok could soon be banned for South Australian children under the age of 14 under laws proposed in a report by a former Chief Justice of the High Court.
Under the rule changes tech companies would face a range of sanctions – including large fines – for allowing children to sign up to the platforms, and the families of children who suffer mental or physical harm as a result of access to social media would be able to sue for damages in circumstances where a provider breached their duty.
The report, by the Honourable Robert French AC, is the result of an Independent Legal Examination commissioned by the State Government in May, amid growing concerns over the potential negative impacts of social media use on children’s mental health, wellbeing and development.
The 276-page report includes a proposed bill which sets out the legislative framework to ban social media for children under 14 and require social media companies to establish parental consent before allowing children aged 14 and 15 to use their platforms.
The Children (Social Media Safety) Bill 2024 imposes a positive obligation and duty on social media platforms to prevent access to their services by an individual child within the restricted age ranges.
A second and separate duty would require providers to take reasonable steps, from a systemic perspective, to prevent access within the restricted age ranges – for example through the implementation of available technology and processes.
The system would be overseen by a regulator, which would be responsible for monitoring compliance and issuing a range of sanctions to social media platforms for breaches, including substantial financial penalties.
For more serious breaches, the regulator would be also able to seek significant penalties and orders through the Supreme Court.
Social media platforms which could demonstrate a positive impact for children (such as school-based platforms) would be able to seek an exemption from the Act.
The State Government will now closely consider Mr French’s report and will this week open consultation on the draft framework bill.
While Mr French’s review makes clear that it is open to states to act independently of one another and the Commonwealth, it would be clearly more desirable for a harmonised approach across states, or an exercise led by the
Commonwealth.
The Prime Minister, state premiers and chief ministers gathered at National Cabinet last week to discuss the proposals, and the release of Mr French’s report comes ahead of a joint Social Media Summit to be held in Sydney and Adelaide on October 10 and 11.
The summit will feature an array of experts from regulatory, technical, ethical and health sectors who will come together to highlight the many and complex matters surrounding this growing societal problem.
The Honourable Robert French AC served as Chief Justice of the High Court from 2008 to 2017. He served as a judge of the Federal Court of Australia from 1986 to 2017.
Mr French previously undertook a review on freedom of speech and academic freedom for the Federal Government in 2019 and chaired the Law Council's Access to Justice Project from 2017 to 2018.
He is currently the Chancellor of the University of Western Australia and the Chair of the Constitution Education Fund Australia which is focused on civics education.
“The issue of protecting children from the harms of social media is one of global concern,” Mr French said.
“The proposed legislative model to give effect to a ban on access to social media by children under 14 and requiring parental consent for children aged 14 and 15, has regard to the complex and dynamic setting in which the law would operate.
“My hope is that South Australia’s initiative leads to a coherent national approach to this issue.”
The news of the South Australian push was followed by announcement that the Federal Government was considering a national ban, which could extend to children as old as 16, as soon as the end of 2024.
You can have your say on the proposed SA legislation here.
