French Constitutional Council Blocks Under-15 Social Media Ban, In A Ruling That Should Concern Every Other EU Country

from the whatever-happened-to-liberte? dept

Even as the wider EU was grinding through a long, drawn-out process to figure out which regulatory levers to pull on kids’ safety online, France decided to YOLO it earlier this summer by jumping at the chance to ban all social media for kids under 15. This kind of thing has become popular with out of touch adults in the grips of an ongoing moral panic, since Australia led the way after gambling companies pushed the ban as an alternative to banning gambling ads. Australia’s ban isn’t doing very well, with the majority of kids figuring out how to work around it, and those being left out being the most marginalized and in need of community.

And yet, countries around the globe have all suddenly decided — some based on reading Jonathan Haidt’s badly reasoned book — that they must do this too.

France was the first in the EU, with President Emmanuel Macron gleefully treating France’s willingness to rush in with little thought or understanding as a selling point:

“France is leading the way in Europe in protecting our children and our teenagers,” Macron said. “We will keep on going.”

He wanted the ban to be implemented in mere months, just as kids returned to school.

But that’s all run into a bit of a stumbling block known as the French Constitutional Council, which has said the ban is an unconstitutional attack on kids’ rights to free expression and communication. The Council also flagged a second problem: you can’t enforce an under-15 ban without making every user, adults included, prove their age. The law demanded exactly that, without defining a single condition, limit, or technical standard for how that verification would work.

A court in France on Friday shot down a bill seeking to ban access to social media for under-15s from September — a major blow to President Emmanuel Macron that raises fundamental questions about efforts to protect kids on the internet.

The Constitutional Council, which reviews the constitutionality of French legislation, said the restrictions in the bill disproportionately infringe on minors’ right to freedom of expression and communication.

Reading through the Google translation of the actual ruling, it’s pretty short and to the point. Similar to how the First Amendment requires any restriction on speech to be narrowly tailored to a specific government interest, here the Council says the ban is way too broad and not based on any specific, narrowly defined harm, though it admits that the aims of protecting children are certainly legitimate:

Furthermore, while the established prohibition does not apply to online encyclopedias, educational or scientific directories, or platforms for developing and sharing free software or open-source educational digital projects, the exceptions provided for in the contested provisions remain limited. In particular, these exemptions do not cover collaborative services for sharing leisure, information, or mutual aid content, online communication applications, or online games with strong collaborative and social features, nor do they cover online social networks which, while not inherently educational, are created in connection with educational activities.

Thus, the prohibition established is likely to apply to online communication services whose risks to the health and safety of minors, relating in particular to their content or mode of operation, are not established.

In short, the law goes way too far in issuing a blanket ban of all children, no matter what the circumstances. If you have a legitimate, well-defined problem, come up with a narrowly tailored solution. The French government rushed this one through with little concern for things like that.

It also leaves little room for parents to decide for their own kids what’s appropriate:

… neither the contested provisions nor any other provision sets out the conditions under which the holders of parental authority or the legal representative of the minor, duly informed of the potential risks and safeguards presented by the services concerned, may, in the child’s best interests and in the exercise of their duties under the law, decide to lift the prohibition, limit its scope or authorise access to certain services.

Thus, the prohibition established does not give rise to any particular assessment of the risk to the minor, taking into account in particular his age, his degree of maturity, his family situation as well as the nature of the service concerned.

Also, the age verification attack on privacy is important to recognize:

By prohibiting access for any minor under fifteen years of age to certain online services, the contested provisions imply, in themselves, that any person, even an adult, must prove their age before accessing them.

The Council further notes that the law makes no real effort to figure out how one might implement age verification in a manner that protects the privacy rights of adults.

Of course, having hitched his own legacy to this thing, there’s no way Macron lets it go quietly:

In a statement late Friday, the French presidential office said the government would not be giving up on the bill. It has set a new target date for spring 2027, which coincides with when Macron will leave office.

The statement said Macron “has instructed the Prime Minister to work, as quickly as possible, on a legally sound draft that takes into account” the court’s decision. The ruling hinted at what would make the age restriction align with fundamental rights: giving parents more flexibility.

Politico also spoke to Peter Craddock, a Brussels-based attorney who works on social media regulation, who notes that any other EU country attempting a similar blanket ban is likely to run into exactly the same wall:

“The reasoning is actually equally relevant internationally, throughout the EU, because this fundamental freedom is not specific to France,” he said.

Which is a useful reminder that the freedom of expression problem here isn’t a quirk of French constitutional law. It’s baked into the whole approach — and no amount of “but it’s for the children” framing makes it go away. That’s even more true of the problems with age verification requiring the scanning of everyone’s ID, which is an even touchier subject in large parts of the EU than elsewhere.

Really, though, the bigger, more important message here should be to slow down. What’s incredible is that for all of the political and media class whining that social media is some rogue experiment on our children, none of them seem to consider that abruptly trying to block all social media from kids is just as much an experiment, and one that might have equally damaging effects.

Why not wait and see how the Australian ban actually works in practice? The early results are a mess. I get that Macron and other politicians want headlines and a legacy to point at, but it would be nice if they actually followed what the research shows and looked at how the early experiments of these bans have worked out.

So what France produced here was a total rush job that sacrificed the expression rights of every teenager in the country, the ability of parents to make their own judgment calls regarding their own kids’ access to information and — as a cherry on top — the privacy of every adult who would now need to prove their age at the door to the internet. Thankfully, the Constitutional Council caught all three.

Filed Under: age verification, emmanuel macron, eu, france, privacy, protect the children, social media, social media ban