Social media laws won’t just affect under 16s

Legal and data experts are watching closely and questioning how effective the new laws will be. Some are also warning about the possibility of negative consequences, especially when it comes to age verification.

Announcing the policy, Prime Minister Anthony Albanese indicated the change was overdue.

“Social media is doing social harm to our kids, I’m calling time on it.

“We need to do everything we can to keep our kids safe, and wherever I go in Australia, I know one of the biggest issues worrying mums and dads is the impact social media is having on their children’s wellbeing,”

The government announced it will introduce legislation in the next parliamentary sitting fortnight.

The new law will place a duty on social media platforms to take “reasonable steps” to make sure that basic protections or safeguards are in place, rather than placing the burden on parents or young people.

Following its passage, there will be a lead time of at least 12 months, to allow the industry, governments and the eSafety Commissioner sufficient time to introduce appropriate systems and processes.

The Minister for Communications, Michelle Rowland acknowledges the important role that social media plays in society. “Introducing a minimum age for social media access is about protecting young people – not punishing or isolating them – and letting parents know that we are in their corner when it comes to supporting their children’s health and wellbeing.

“Social media has a social responsibility for the safety of their users, and this legislation is one way they’re being held to account – with significant penalties for any breaches,” she says.

While full details have not been released, Rowland has signalled the need for tougher penalties, to ensure compliance.

Privacy concerns and how the law will work in practice

Although the announcement of 16 as the minimum age has ended months of speculation, some legal experts have expressed concern over how this will work in practice and the privacy implications. For instance, what information needs to be provided or uploaded to the social media platform, to establish or verify the user’s age?

Lawyer and data and privacy law expert, Nicholas Commins says that problems arise where people are required to prove their age. “Because now you are no longer targeting the people under 16. You are actually targeting everyone over 16 [as well],” he says.

He says the most common and accessible form of identification, a driver’s licence, can be targeted by “nefarious actors.” “It actually creates an inverse problem,” says Commins.

Commins says the gaps in digital legislation are most starkly illustrated when you compare it with work health and safety. “[Y]ou’ve got a duty to keep a space safe … it’s mental harms, it’s physical harms and the best way to do that is to stop the harm arising to begin with. It is preventative, it puts an obligation on the people who can actually do something about it,” he says.

As to whether 16 is the appropriate age, Commins says “what about 21? What about 30? What about 45? Is any age appropriate to be on social media?” He says an argument can be made that “I don’t want my 16-year-old to see your extremist content, well I don’t want the 45-year-old posting the extremist content, so why aren’t you legislating against him or her…?” he says.

Rowland recently gave a speech at the Sydney Institute on “The governance of digital platforms.” She announced the government’s decision to “develop a Digital Duty of Care regulatory model to keep users safe and help prevent online harms.”

“A Duty of Care is a common law concept and statutory requirement that places a legal obligation to take reasonable steps to protect others from harm. …

“Where platforms seriously breach their duty of care – where there are systemic failures – we will ensure the regulator can draw on strong penalty arrangements,” she said.

Rowland indicated the government will also legislate categories of harm including harms to young people, harms to mental wellbeing, the instruction and promotion of harmful practices and other illegal content, conduct and activity.

The proposed legislation will place a positive obligation on social media platforms to stop children under 16 from possessing an account.

“Our legislation will include a new definition of social media that is broad and robust, and is designed to capture more services under the term ‘age-restricted social media’ than what is currently covered under the existing Online Safety Act,” she says.

Rowland noted that social media services like Facebook, Instagram, TikTok and X (formerly known as Twitter) will be subject to the minimum age limit, however messaging and gaming services will not fall within the ambit of this definition.

Social media platforms that can establish that they comply with the criteria and do not utilise harmful features, or provide helpful or positive benefits for children, can seek approval from the regulator.

Inquiry into social media

The Joint Select committee on Social Media and Australian Society (committee) was appointed in May this year to investigate and report on the impact of social media on Australian society. The committee’s final report was tabled and released on 18 November 2024 and the report noted that while social media can be used as a “tool for connection, learning and support for many,” it can also cause negative and often detrimental effects on mental health and a user’s overall wellbeing.

The committee was presented with evidence from parents, young people, experts, academics, mental health professionals and a range of advocacy and community services on the effect of social media and the various online harms. Parents of children detrimentally affected by social media shared their experiences with the committee including anecdotes of how their child was “seriously harmed by their interaction with social media,” despite the parents implementing rules or “controls” over their child’s social media use. These parental controls were often insufficient in keeping their children safe online.

The committee made 12 recommendations including:

• The government should “consider options for greater enforceability of Australian laws for social media platforms, including amending regulation and legislation, to effectively bring digital platforms under Australian jurisdiction.”
• The government should introduce “a single and overarching statutory duty of care onto digital platforms for the wellbeing of their Australian users, and requires digital platforms to implement diligent risk assessments and risk mitigation plans to make their systems and processes safe for all Australians.”
• Prioritise recommendations from the review of the Privacy Act especially to afford “greater protections” over the personal information of Australians and children, as part of its privacy reforms, for instance the Children’s Online Privacy Code.
• Legislative requirement for social media platforms to possess a “transparent complaints mechanism” with a right of appeal process that is “robust and fair.”
• Greater resources for the Office of the eSafety Commissioner.

Impact on social media and its users

Sophie Dawson, partner at Johnson Winter Slattery says that “all of this is going to have real impacts on social media platforms and also in relation to any children that are using them.”

However, she acknowledges there is the potential for children to find ways around the restrictions. “There is scope for children to try and circumvent these sorts of laws because we’ve got such a tech savvy cohort of young people,” she says.

Dawson points out there has been an extraordinary wave of regulation of the internet. “We are seeing the internet become rapidly heavily regulated from being a sort of less regulated space. We are also seeing a strong emphasis on [the] protection of children,” she says.

There are only a handful of sitting dates left in the year. Dawson acknowledges that “it is a rapidly changing environment and the next sort of few months, when we see what the government does in this term of parliament will be very interesting because it’s certainly an ambitious legislative agenda.

“If everything goes through, it will have very significant impacts on internet businesses in Australia and … the experience people have [on] the internet,” says Dawson.