Legal experts say Canada’s proposed social media ban for kids leaves many questions unanswered — including whether it would violate the Charter of Rights and Freedoms.
Last week, the federal government tabled Bill C-34, the Safe Social Media Act, which would force social media platforms to restrict accounts for children under 16 unless the platforms can implement adequate safeguards to protect them.
Lawyers and law professors are raising flags about gaps in the legislation that could leave Canada open to legal challenges.
“Whether it would withstand a constitutional challenge is unclear. It seems to me unlikely,” said Robert Diab, a law professor at Thompson Rivers University in Vancouver who has written about social media bans.
Diab says a full ban would infringe on children’s right to free expression under Section 2 of the Charter. But that in itself wouldn’t make it illegal.
The Liberal government tabled a bill to restrict young Canadians’ access to social media unless companies can demonstrate their platforms are safe. The Safe Social Media Act also aims to limit youth access to AI chatbots.
Charter infringements are subject to the Oakes test, a framework used to determine whether an infringement can be justified under Section 1 of the Charter, which subjects all rights to “reasonable limits.”
The government would have to prove its objective is rationally connected to a “pressing and substantial objective,” minimally impairs the right in question and that the beneficial effects of the law aren’t outweighed by the negative effects.
‘A core human right’
Diab said challengers could argue that a ban goes beyond minimal impairment, compared with more moderate measures such as algorithmic transparency, time limits and parental consent.
“You do have a constitutional right to free expression. Even though we are talking about young children or teenagers, this is still a core human right,” Diab said.
“A ban on something as socially vital as social media is a significant restriction on a very core freedom.”
Diab said the government could argue that the documented harms of social media are significant enough to present a pressing and substantial problem, and that addressing the harm to children outweighs the infringement on their liberties.
Australia’s under-16 ban, which took effect in December, is facing High Court legal challenges from teens and from social network Reddit on free-expression grounds.
Most people use social media recreationally, but some kids make money as influencers and some use it for activism. Social media has played a role in several youth-led, so-called “Gen Z protests” around the world in recent years.
Because the bill leaves room for social media platforms to avoid bans by addressing harms to children — and because many details are yet to be worked out — legal experts say it’s possible that all the major platforms will comply and avoid the ban completely, which may be the government’s preferred option.
Decisions about exemptions will fall to the Digital Safety Commission, which Diab suspects will take more than a year to get up and running.
A global movement
In the meantime, more than a dozen other countries are moving toward age restrictions on social media.
The U.K. announced a ban this week for kids under 16, to be introduced in early 2027. The government said it will cover Facebook, Instagram, Snapchat, TikTok, X and Bluesky, as well as YouTube but not YouTube Kids.
Maanit Zemel, a Toronto lawyer with expertise in internet law, online defamation and cyberbullying, has been a proponent of regulations to protect vulnerable Canadians from the harms of social media.
“The policy behind it is based on years of study and research that shows that these sites are, in fact, harmful to children,” she said.
Meta, Google, TikTok and Snap are facing thousands of lawsuits in Canada and the U.S. alleging the platforms deliberately harm children. In March, a California jury found Meta and YouTube liable in a landmark social media addiction trial, ordering the companies to pay millions in damages to a 20-year-old woman after finding their platforms were designed to hook young users without concern for their well-being.
Canada’s Bill C-34 says companies are expected to use age-appropriate design features, keep children from accessing pornographic content, label bot-driven and synthetic content, and comply with take-down requests within 24 hours for material that sexually victimizes a child or shares intimate content without consent.
But Zemel said there are so many details missing from the bill that it’s hard to know whether it will clear the bar of constitutionality.
She said there’s no question that a full ban violates Section 2’s free-expression rights. Whether Section 1 can “save” the ban will depend on factors that have yet to be determined.
“It’s a very delicate analysis and balancing of interests,” Zemel said.
‘It all depends on the fine print’
If the bill leaves constitutional holes, she said big tech companies have the incentive and resources to fight regulatory penalties in court.
She said Quebec took a more targeted and “practical” approach that’s more likely to hold up to constitutional challenges by passing regulatory rules specific to child sexual exploitation and non-consensual intimate images. B.C. has passed similar legislation.
“There’s minimal impairment there. Like, what is the harm here to freedom of expression? It’s very, very low,” she said.
Two Grade 9 students spoke to the CBC’s Colleen Kitts-Goguen about their thoughts on a minimum age for social media use.
The government has not specified which social media platforms will be subject to the ban, how exactly they will qualify for exemptions or how users will verify their ages.
Zemel wrote in a blog that the bill presents “fragments of a plan” but leaves a “staggering” amount of work to be done. She cited a list from Michael Geist, Canada Research Chair in Internet and E-Commerce Law at the University of Ottawa, who laid out “50 key issues to be decided after the bill becomes law.”
“It all depends on the fine print,” Zemel said. “The fine print matters very much when it comes to constitutionality, which we don’t have right now.”
The Heritage Ministry did not answer questions from CBC News by deadline.
