France: Social media ban is found unconstitutional in win for children’s rights

On 14 August, France's highest constitutional authority (the Constitutional Council) struck down a proposed social media ban for under-15s. It found that the ban infringed free expression and privacy. This is a very significant decision for children's rights in the digital environment, as it gets to the heart of the pervasive - but false - dilemma of protection versus civil and political rights. It shows that children cannot be kept safe online at the expense of their other rights.

The text of the bill was incredibly broad. The ban would have applied to any under-15s accessing 'an online social networking service provided by an online platform'. The exceptions to this access were very limited: restricted only to online encyclopedias, educational or scientific directories, or to platforms for the development and sharing of free software or open-source digital projects with an educational purpose.

The Council recognised that the constitutional requirement of protecting the best interests of the child and the objective of preventing breaches of public order could justify limiting children's access to social media. However, it found that the ban disproportionately restricted free expression and communication, and failed to provide legal safeguards for the respect of privacy.

Regarding freedom of expression and communication, the Council noted that this entails the freedom to access and express oneself on online public communication services. The Council also highlighted an angle that is often neglected in conversations about children - the importance of free expression for participation in democratic life.

It determined that the ban was not a necessary and proportionate restriction on free expression. The ban was far too broad; it did not pose any conditions around functionalities, content, the dangers platforms pose nor any protections in place. The limited exemptions did not cover, for example, services for sharing leisure, information or mutual aid content - or applications or games with strong collaborative and social features. This meant the ban was likely to apply to services whose risks have not been established. There was also no consideration of a child's age, level of maturity and family situation, and no role for parents to lift the ban or to modify its scope in the child's best interests.

Regarding privacy, the Council noted that a social media ban implies that everyone - children as well as adults - must prove their age before accessing platforms. In their case application, critics had warned about the absence of any provisions around the processing of sensitive data, as well as the parties responsible for this and the technical methods of age verification. The Council agreed that, by failing to set out any conditions or limits around age verification, the proposal did not provide the legal safeguards necessary to ensure the right to respect for private life.

As to what will happen next, the political landscape in France is fraught - not least because France will hold presidential elections next April. While Emmanuel Macron wants a revision of the bill before the spring, presidential hopeful Gabriel Attal has called for a 'referendum to protect our children', saying that he respects the Council's decision but 'there is urgency'. All of this while, the EU is expected to put forward its own approach to children and social media by the end of this year. This is also happening at the same time that Meta has settled a lawsuit for billions, having agreed to change some features on its platforms in the US by setting time limits on children's use of its platforms and blocking night-time usage.

In a debate that often glosses over rights and is dominated by rapid reactions, political point-scoring and corporate calculations, the result delivered by the French Constitutional Council is a win for children's rights. Regardless of next steps, we know this much is clear: policymakers everywhere should be taking note. Anyone working to protect children online needs to shift their attention from restricting children's access towards the better regulation of platforms.