On 8 September 2024, the Honourable Robert French AC released the ‘Report of the Independent Legal Examination into Banning Children’s Access to Social Media’ (French Review) which includes a consultation exposure draft of the Children (Social Media Safety) Bill 2024 (SA) (draft Bill) for the Premier of South Australia.
The French Review details an indicative legislative model which includes a duty of care for social media services to prevent access to “social media services” by children in South Australia under the age of 14 and by 14- and 15-year-old children who do not have parental consent. Any breach of the duty gives rise to a cause of action for which damages are available as a remedy. An infringement notice can also be issued resulting in payment of a penalty.
On 10 September 2024, in an interview with ABC News Breakfast, Prime Minister Anthony Albanese commented on the proposed draft South Australian reforms. The Prime Minister stated that the Federal Government will consider both the recommendations of the French Review and the proposed draft Bill to inform the design of “a national response, rather than eight different state responses.” The Prime Minister also confirmed that the Federal Government is consulting on introducing a social media age limit between 14- and 16-years of age and that federal legislation will be introduced before parliament by the end of this year.
If the Federal Government were to legislate in this area, Commonwealth legislation would prevail over State legislation to the extent of any inconsistency and will exclude the operation of State legislation if the Commonwealth legislation covers the field.
The proposed scope for the draft Bill’s application is ‘social media services’, the proposed definition of which is based on the definition from the Online Safety Act 2021 (Cth) (‘OSA’). However, the draft Bill adopts a slightly modified definition to also capture electronic services with instant messaging functionality, discussion forums, content sharing features, livestreaming platforms and other online video games.
The draft Bill also provides a definition for ‘exempt social media service(s)’ which includes services that are designated by a notice as exempt or a service that is a member of a class of social media services designated as exempt by the Minister. The French Review proposes ‘EdTech applications with social functions’ as a potential class of exempt social media services, notable examples in this proposed class include YouTube, Roblox and Minecraft. From notes in the French Review regarding consultation between Google and Justice French, it appears YouTube has been suggested as an exempt service as it does not recommend content based on user interaction or other social connections, YouTube also provides a dedicated ‘YouTube Kids’ service.
The French Review considered five other proposed definitions for ‘social media services’, each of which are variations of the definition contained in the OSA. Some of these proposed variations on the definition expressly include or exclude messaging services, online multiplayer video games, internet search engines and app distribution services. As such, the proposed scope of reform seemingly extends well beyond traditional conceptions of ‘social media services’ and the reform will instead broadly capture most services that enable any form of online interaction between users.
The proposed definition of ‘social media services’ captured by the draft Bill is set out below:
social media service means –
(a) an electronic service that satisfies 1 or more of the following conditions:
(i) the sole or primary purpose of the service is to enable online social interaction between 2 or more users;
(ii) the service allows users to link to or interact, or interact with, some or all of the other users;
(iii) the service allows users to post material on the service;
(iv) the service is a relevant electronic service;
(v) the service satisfied any other conditions prescribed by the regulations; or
(b) a service, or service of a class, prescribed by the regulations; but does not include an exempt social media service. In determining what the sole or primary purpose of a service is for the purposes of paragraph (a)(i) of the definition of social media service in subsection (1), the purposes of advertising, or generating revenue from advertising are to be disregarded.
The legislative model set out in the draft Bill includes the following proposed reforms:
Reform focus
Proposed changes
Regulator
A new South Australian Regulator of Child Social Media Safety (Regulator).
Duty of care
A new duty of care on:
(as above, an ‘exempt social media service’ means a service designated by notice as exempt or a service which is a member of a class of social media services designated by the Minister (e.g. ‘EdTech applications with social functions’))
Defence
A defence is available for non-exempt providers of social media services if it can prove, at the time of the breach, the social media service provider had taken all reasonable steps to prevent access to its social media services.
(measures that constitute ‘reasonable steps’ are to be prescribed by regulations under the Bill)
Enforcement mechanisms
The reforms provide for a range of enforcement mechanisms, including:
(provisions specifying amounts payable for infringement notices / compensation orders / civil penalties are to be fixed by regulations under the Bill. Any amount paid under the Bill will be paid into a ‘Children’s Online Safety Fund’ (Fund) established by the Bill, and the Regulator may apply the Fund towards: (i) enforcement costs; (ii) research costs; (iii) discretionary payments to children who have suffered harm; and (iv) community educational efforts.)
Cause of action
The proposed reforms also provide that where a social media service provider breaches the duty of care and a child (under 16-years of age) suffers mental or physical harm as a result of access contrary to the duty of care, the breach of duty of care will be actionable as a tort by the child (or the child’s parent or the Regulator in its discretion) and damages may be awarded against the provider as if the breach of duty of care constituted negligence by the provider.
Complaints mechanism
A complaints mechanism that allows individuals to complain on behalf of children to the Regulator where a South Australian child is being provided with access to a non-exempt social media service, contrary to the service’s duty of care.
In light of the above developments, businesses that fall within the broad ambit of “social media service” providers will need to keep an eye out for future iterations of the draft Bill, particularly once before the South Australian parliament, and for other broader Federal and State level reform / consultation processes in this space.
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