Introduced in June, the Digital Safety Act aims to reduce online harms, particularly for children, and impose a duty of responsibility on social media platforms. However, observers say it’s a blank cheque for the federal government to regulate.
While Bill C-34 would create a new Digital Safety Commission to oversee much of the regulation of online spaces, its intention to ban youth under 16 from using social media platforms unless the sites can demonstrate a child-safe environment has drawn most of the attention. This ban would extend to AI chatbots, which are under scrutiny following their alleged role in the Tumbler Ridge shooting in British Columbia earlier this year.
Bumping up against the Charter
When it comes to the social media ban for youth, Brussières McNicoll says what is required is age-appropriate design, such as privacy-by-default, prohibition from profiling, and limits on endless scrolling. However, this legislation leaves most of this to future regulation and creates a mandatory approach to age that fosters significant risks. What’s more, it violates section 2(b) of the Charter because of the limits on free expression.
“Banning people from social media platforms has a direct impact on their ability to express themselves, and also to receive information,” she says.
Kyla Lee of Acumen Law in BC, and a former chair of the CBA’s criminal justice section, says the Charter infringement arising from restricting the free expression of people under 16 is her biggest concern.
“The Charter doesn’t just apply to adults,” she says.
Lee fully expects a constitutional challenge because the blanket prohibition on people under 16 goes too far.
She says many platforms have very good purposes for young people. She points to her own social media, through which she shares information about the law, explains government bills, and outlines rights when dealing with police.
Restricting social media access will deprive people under 16 of that medium and form of communication, which Lee says is the dominant way many people disseminate and consume news.
“You’re actually cutting people off … from information at the same time as you’re limiting their free expression rights.”
