BRUSSELS — Ursula von der Leyen is so set on getting her grandkids off social media she forgot to do her homework.
The European Commission chief made waves in recent weeks when she came out in favor of a European Union minimum age for using social media — twice. Citing strong pressure from EU capitals for a “digital majority” age, von der Leyen said at an event in New York that “as a mother of seven children, and grandmother of five, I share their view.”
“We all agree that young people should reach a certain age before they smoke, drink or access adult content. The same can be said for social media,” she said.
But von der Leyen has so far overlooked a simple fact: It’s up to national governments, not the EU, to set age restrictions for alcohol and tobacco. The Commission can coordinate rules about health but cannot harmonize them, according to the legal treaties of the bloc.
“There is a significant question of whether [banning social media] is even something that the European Union has the power to do,” said Peter Craddock, partner at Keller & Heckman law firm in Brussels. Craddock currently offers legal services to social media companies.
Von der Leyen said in her annual State of the Union speech that she will task a panel of experts to study whether to implement a social media ban and how to do it.
There’s a lot to figure out, such as how much “autonomy” to give EU countries and whether they should be allowed to set their own age, whether “it’s a full ban or a partial ban for certain functionalities or certain types of interactions,” Craddock said.
Commission spokesperson Thomas Regnier in June said that an EU-wide ban “is not what the European Commission is doing. It’s not where we are heading to. Why? Because this is the prerogative of our member states.”
For many, that hasn’t changed. “Currently, we don’t see any legal basis for a harmonized social media ban for children at EU level,” said Fabiola Bas Palomares, lead policy and advocacy officer at Eurochild, a children’s rights group.
Many laws, no solutions
The EU’s flagship privacy regulation, the General Data Protection Regulation (GDPR), was one legal route the Commission previously suggested as a possible avenue.
The GDPR sets the age of 13 as the lowest possible age when minors can consent to their personal data being processed — something that happens on all social media platforms. But the law allows for different countries to raise the bar.
But experts have pointed out this doesn’t really work as an instrument to impose a digital majority age.
Craddock pointed out that a country can end up in a situation where laws on processing personal data are “less permissive” than access to social media, or vice versa. “Then you have to be able to justify that,” he said.
The GDPR still shows that EU legislators “were able to at least have a range” of ages for restrictions, said Urs Buscke, senior legal policy officer at umbrella consumer organization BEUC. She said this is where things could go for social media restrictions too.
Another legal avenue is a revision of the EU’s Audiovisual Media Services Directive, a law that applies to video-sharing platforms — which effectively covers most social media. The law will be reviewed next year and stronger protections for minors are on the table.
But, in EU speak, that law is a directive and not a regulation, meaning countries have a lot of leeway in how to apply it. It is also focused on keeping kids away from adult content, not off social media altogether, said Bas Palomares.
There are guidelines under the Digital Services Act, but those guidelines are non-binding and help platforms comply with the EU’s landmark online safety law. Released this summer, the latest version still leaves age restrictions up to EU countries. The guidelines are reviewed annually, so the Commission could look to tighten the screws on platforms next year. But Regnier stressed last week that the Digital Services Act “is not the legal basis that will allow us to set the minimum age” for social media.
There’s also the Digital Fairness Act, an upcoming revamp of consumer law, which will include provisions on protecting vulnerable consumers, including minors. Buscke, who specializes in consumer law, said this is unlikely to include a social media ban.
Craddock said it’s too late to tack a social media ban onto that revamp as consultations are already ongoing and such a measure would require large-scale studies.
Can they, should they?
Warnings about the health dangers of kids’ addictions to social media have piled up — from the EU’s top leadership and governments all the way to health authorities and tech regulators.
But despite the momentum, some experts doubt an outright ban is the right way to go.
Bas Palomares said a ban is incongruous with children’s rights to “protection, information, education, freedom of expression, play” which are “substantially enabled” by social media.
“A social media ban would mean a disproportionate restriction of children’s rights and perhaps push them toward situations of greater risk and lower supervision,” she said. “Before resorting to arbitrary age restrictions, the EU should focus on leveraging and complementing the tools we already have.”
The post An EU age limit for social media? Get the lawyers in appeared first on Politico.
