Restricting access to social media platforms to children of a certain age has become something of a spreading mania. This prohibitionist urge has captured the interest of governments for its shallow, meretricious appeal. Refusing to deal with the actual conduct of the social media giants, notably in terms of their odious brand of surveillance capitalism and its influence on adults and children, preference has been shown for populist, crowing measures that focus on prohibition over education.

On August 14, France’s Constitutional Council struck down legislation banning the use of social media by persons under the age of 15 years, a law that had been passed making France the first European country to do so. (Australia had been the first off the rank in December last year.) The provisions would have come into force in January 2027. The law, initially titled “Loi visant à protéger les mineurs face aux risques associés à l’usage des réseaux sociaux” (Law aiming to protect minors from the risks associated with social media usage) had been adopted by the French Parliament on July 21 with the ostensible intention of addressing the ills arising from social media use by young persons, with anxiety, depression and sleep disorders being among them.

In invalidating Article 1 of the bill as contrary to the French Constitution, the Council found that the blanket restriction was disproportionate in nature. The scope of the measure was regarded as unduly excessive and, if we can get a measure of the court’s mood, sloppy. The ban, defined by cross-referencing the EU’s Digital Services Act (DSA) and Digital Markets Act via Article 6 of France’s June 21, 2004 law, covered “access to any online platform allowing end users to connect and communicate with one another, share content and discover other users and other content”. Such access, however, was “not subject to any condition relating to the functionalities or content offered, the dangers they expose users, and the inadequacy of the safeguards with which they are provided.” While the law permitted some exceptions – for instance, online material relevant to encyclopaedias, education and science, or platforms using or developing material intended for an educational purpose – these were simply too narrow.

While the object of protecting minors in their best interests might be justified by imposing social media restrictions, the manner of doing so in this case had been neither necessary nor proportionate to achieving that goal, infringing the fundamental rights of children in exercising freedom of expression and communication. (Article 11 of the EU Charter of Fundamental Rights is, to that end, a vital consideration.) It impinged the rights of young people to access information and engage in the democratic system, preventing the useful instruction of children for future meaningful engagement with the process upon ceasing to be minors. Social networking platforms should not be treated as uniform, sinister and threatening; they could also be essential to advance education, foster civic engagement and assist in building communities.

The Council also took issue with the absence of appropriate privacy safeguards on the issue of verifying the age of platform users. The prohibition of those under 15 “from accessing certain online services [implied] that every person, even an adult, must prove his or her age before accessing them. In the absence of a determination of the conditions and limits within which this must be justified, the legislature has not provided the legal safeguards of such a nature as to ensure compliance with these constitutional requirements.” Curiously enough, the government argued in its August 5 submission to the Council that the European DSA exhaustively covered the field on age assurance, thereby limiting the French legislature’s power to impose further safeguards. (The guidelines in Article 28 of the DSA are, however, non-binding.) The Council preferred to focus on the constraints of French constitutional requirements vis-à-vis national laws.

Of much interest in the decision was the marginalisation of parental invigilation. A continuous theme in the rhetoric used in social media bans for minors in every jurisdiction keen on the subject is a sense that parents have lost control and authority in the field of technological instruction. They are the impotent, the aggrieved and the outraged in the face of seductive power wielded by the digital giants. The paternalistic State has assumed the role of in loco parentis. For the Council, excluding the role played by parents in dealing with the social media consumption of their children failed to consider the individual risks posed to a minor, the considerations particular to that family. The ban failed to consider “in particular his or her age, degree of maturity and family situation, as well as the nature of the service concerned.” Amicus briefs by a number of groups and organisations fortified such reservations.

The role of parents and legal guardians would have to be a central feature in any social media restriction for children. It is they who should have the capacity “to lift the ban, to limit its scope or to authorise access to certain services”, keeping the best interests of the child in mind. Christian Cirhigiri and Sabine Witting, in their invaluable overview of the case for Tech Policy Press, suggest that some form of Verifiable Parental Consent (VPC) mechanism might come into play, though this would pose “a myriad of legal and factual implementation issues.” This would not get away from those cumbersome, intrusive mechanisms – the use of ID checks, facial recognition software, credit card verification – that can be easily circumvented by wilier, more determined children while also posing privacy risks for parents.

French President Emmanual Macron has directed Prime Minister Sébastien Lecornu to make the necessary adjustments, taking into account the Council’s decision. Other countries showing an untempered appetite for implementing similar provisions should also take note, not least other EU member states prior to the adoption of a bloc-wide position on child safety expected in December this year.

The constitutional reasons of the Council, while specific to France and European rules, may also have some persuasive bearing in a country that gave birth to this bit of regulatory silliness. An action was filed with the High Court of Australia in November 2025 by two teenagers, Noah Jones and Macy Neyland, aided by the Digital Freedom Project led by John Ruddick, a Libertarian Party member of the New South Wales upper house. The parties contend, in words outlined on the Digital Freedom Project’s website, that the Australian ban, places “a heavy burden on political communication and fails proportionately because less restrictive and workable alternatives exist (parental consent pathways for 14-15 year olds, platform duty of care and safe design settings, targeted moderation/takedown, age appropriate feature gating rather than bans, digital literacy programs, and privacy preserving age assurance).” Whether this is persuasive to the High Court justices, the rationale presuming children to be eternally incapable of making their own decisions, uninterested in seeking instruction and education, and even having a functional relationship their parents when it comes to using such technology, is a deeply flawed one best done away with. Be wary politicians and policy makers keen on exploiting the motif of the sacred child imperilled and incapable.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He currently lectures at RMIT University. Email: [email protected]