Social media giants will be slapped with “harsh” fines if they allow children under 14 to create accounts and risk lawsuits from parents of children who suffer harm, under draft South Australian laws the government says are suitable for all jurisdictions.
A report by former High Court Chief Justice Robert French released on Sunday includes a draft bill with the legislative framework to ban children under 14 from social media and requires companies to gain parental consent for 14 and 15-year-olds to use their platforms.
While releasing the report on Sunday, SA Premier Peter Malinauskas said the bill would create a systemic social responsibility on platforms such as Facebook, Instagram and TikTok to ensure they undertake all reasonable steps to prevent children from getting access.
“This is an obligation that is on the social media companies themselves which is exactly, of course, what we know they will resist,” he said.
If approved, the SA Children (Social Media Safety) Bill 2024 would be the first of its kind in Australia and would impose a “positive obligation and duty” on social media platforms.
The system would be overseen by a regulator responsible for monitoring compliance and issuing sanctions against social media platforms, including allowing parents to sue for damages if their child was harmed because a provider had breached their duty under the act.
The consequences for providers would be “severe and harsh”, Mr Malinauskas said.
“The regulator can undertake action and also, at the most severe end, pursue civil penalties of a seven-figure sum or more against these platforms in the event that they break the law,” he said.
“We want to create a big, massive deterrent against these giant companies where they do harm to our children.”
Mr French’s report notes that while it is legally possible for SA to create its own regulator, the timeline would be “significant”.
“An alternative approach would be to secure the agreement of the Commonwealth to confer a new state-based regulatory function upon the Commonwealth eSafety Commissioner,” Mr French wrote.
His report also recommends a category of exempt social media, where there is low risk or benefits for users, such as educational apps.
Mr French also noted no regime was perfect and ensuring compliance would be challenging because it required age assurance measures, location measures and, where applicable, verification of parental consent.
“There will undoubtedly be workarounds by knowledgeable child users,” he said.
“However, the perfect should not be the enemy of the good.
“A beneficial effect of the law may be to arm parents with the proposition that it is the law, not them, that restricts access to social media for children in South Australia.”
Mr Malinauskas discussed the proposal with other premiers, chief ministers and Prime Minister Anthony Albanese at a meeting of the national cabinet on Friday, when he made clear the SA Labor government’s preference was to collaborate.
The SA and NSW governments are staging a two-day summit in October focused on exploring and addressing the impacts of social media.
