In the age of smartphones, children worldwide are gaining access to social media earlier than ever before. In response, some states within the United States of America (US) have begun drafting and passing legislation to protect children from the risks of unfettered access to social media. For www.parenting.digital, Catherine Grimley explores the common approaches of these state laws and concludes that the ideal legislation is one that properly considers the competing interests of the children, their parents/guardians, and the social media companies to provide the safest user experience.

Competing interests

Social media can be a fantastic way for children to express themselves and connect with others. However, studies show that social media can negatively affect children’s self-esteem and increase their likelihood of developing eating disorders, depression, anxiety and self-harm. Moreover, the anonymity of social media provides an avenue for those wishing to exploit children to reach them easier than ever before.

Currently, there is a robust debate between how much responsibility parents should play in monitoring their children’s social media use and how much responsibility social media companies have for creating safeguards in their products. Parents are primarily responsible for ensuring that their children are safe but expectations that they can constantly monitor their children online are unrealistic – parents are not always available or they might be unfamiliar with technology.

Conversely, social media companies are in a seemingly perfect position to remedy the issues by adding safeguards to their platforms. However, these companies must consider their business interests and the changes they make to limit their platforms’ use may drive down revenue. Social media companies are further disincentivised to make changes by Section 230 of the US 1996 Communications Decency Act, a federal law which essentially shields social media companies from being sued because someone feels wronged by something another person posted.

Under the doctrine of parens patriae — a strong principle of law in the USA stemming from England that gives the state some paternal and protective role over its citizens — the state also has a responsibility to intervene when a child may be at risk. Currently, we are seeing an explosion of US state laws looking to regulate children’s access to social media. This comes amid new evidence from the Digital Futures for Children centre (DFC) in the UK that legislation and regulation are driving social media companies to make important child privacy and safety changes. Although each US state’s statutes differ, there are some common approaches amongst the states.

Age verification methods

One common approach of these laws is to create methods to verify the age of users to ensure that children’s accounts have enabled safeguards limiting their access to age-inappropriate content. Some examples include delegating the articulation of these methods to committees or task forces, following ‘commercially reasonable methods’ and explicitly listing potential methods. Notably, many European Union and United Kingdom national laws already place specific obligations for age verification on certain platforms.

Restrictions on interacting with children’s accounts

Another area that differs between laws is what default limitations are placed on how other users are restricted in their interaction with children’s accounts. Some common settings include prohibiting private messaging between child users and users they are not connected with, restricting who can find children’s accounts, limiting targeted advertisements, and allowing parental access to certain parts of children’s accounts. In the EU, the Audiovisual Media Services Directive (AMSD) serves some of these functions, such as limiting targeted advertisements and requiring member states to ensure that platforms provide appropriate parental controls.

Enforcement and liability

US state statutes vary in how to enforce their regulations. Most suits proceed through private rights of action (allowing a citizen to bring a suit directly) or suits brought by administrative entities or the attorney general on behalf of those harmed. Moreover, the types of relief that can be obtained vary. Almost all US state statutes allow for civil penalties (fines) subject to statutory caps, but some statutes also include actual damages (money), injunctive relief (a court order stopping the company from continuing the wrongful act), pain and suffering, punitive damages, and any other relief the court deems fit. The EU has already made efforts to increased penalties through the Digital Services Act (DSA).

What does good legislation look like?

A good piece of legislation considers all competing interests and existing good examples, such as the DSA and the AMSD. It would also model the values set forth in General comment No.25 of the United Nations Convention on the Rights of the Child.

Good legislation should also allow for commercially reasonable age verification methods to ensure that everyone (not just children) is registering with their correct age and require social media platforms to subsequently delete the data to avoid privacy concerns.

Such legislation should also place restrictions on other accounts and the platform’s advertising algorithm to allow children to use the platforms safely. For example, a proposed law in the state of Wisconsin  contains default regulations, which include (but are not limited to):

• Prohibiting any other user not linked to the child account through friending from direct messaging the child account;
• Prohibiting any user that is not linked to the child account through friending from finding a child account in their search results;
• Prohibiting the display of any advertising in the child account; and
• Prohibiting the use of targeted or suggested groups, services, products, posts, accounts, or users in the child account.

Good legislation should further ensure that penalties for violations by social media companies are enforceable and sufficient to both properly compensate the families and to deter future violations. Although the method of enforcement may depend on pending US federal legislation chipping away at social media companies’ Section 230 liability shield, statutes that provide the broadest forms of relief are more likely to reach the desired goals. For example, a proposed law in the state of South Carolina allows for:

• The child and/or parent/guardian to personally sue the company to recover actual damages (money); and
• The attorney general to bring suit on behalf of parents/guardians and children for injunctions (stopping the company from continuing the wrongful practice), civil penalties (fines on the company) and any other relief that the court deems necessary.

These laws, if enacted, could benefit not only children in the US, but children globally. Although laws protecting children currently exist globally, these state laws provide some of the most comprehensive and articulated requirements and penalties for social media companies. Many websites originate in the US, thus, legislation aimed at protecting children stateside could likely have a spillover effect for children accessing the platforms oversees.

First published at www.parenting.digital, this post represents the views of the authors and not the position of the Parenting for a Digital Future blog, nor of the London School of Economics and Political Science.

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