French President Emmanuel Macron has been the global leader in promoting a ban on social media for kids, consistently welcoming countries that propose such measures with a “thanks for joining the movement” tweet. That includes Canada, which received its congratulatory tweet after a ban was included in Bill C-34. As I argued last month, however, I believe the Canadian ban is vulnerable to constitutional challenge on at least two fronts: freedom of expression, since blocking an entire cohort of Canadians from accessing information and expressing themselves on social media infringes Section 2(b) of the Charter, and privacy, since enforcing the ban will require millions of Canadians to verify their age to use social media services with the promised safeguards nowhere in place when the ban takes effect. Last week, France became the first major jurisdiction to have such a ban reviewed by its highest constitutional court, and it proceeded to strike down the law on substantially the same two constitutional concerns.
The French Parliament adopted a social media ban for kids under 15 on July 21st, with the law scheduled to take effect in September. But France’s system of constitutional review led the ban to be reviewed by the constitutional court, resulting in it being assessed and rejected before ever taking effect. Macron responded to the ruling by instructing Prime Minister Sébastien Lecornu to rework the legislation to address the court’s concerns, with the government now targeting spring 2027 for a revised law.
The court’s analysis closely tracks the discussion in my post on the issue. First, it unsurprisingly accepted the policy objective of protecting minors from the risks associated with social media, citing addiction, isolation, and exposure to pornography, harassment, and fraud. However, the French ban would have applied to a broad range of social networks regardless of their functionality or content, with only narrow exceptions. Much like Bill C-34, the law also left no room for parental views, since it did not allow parents to authorize access for their own children. There was also no consideration of individual circumstances, since the prohibition took no account of a child’s age, maturity, or the nature of the service involved. The court therefore concluded that the French ban, which resembled the Canadian ban (though applied to those under 15 rather than under 16), was neither adapted, necessary, nor proportionate to the objective and therefore violated the constitutional guarantee of freedom of expression.
The privacy ruling may be even more relevant for Canadian purposes. The court held that by prohibiting all minors under 15 from accessing certain online services that every person, including adults, would be required to prove their age before accessing them. Further, the law included no protections or safeguards for this mass data collection. In other words, the court ruled that imposing an age verification requirement on the entire population, adults included, while leaving the safeguards governing that verification for later rendered the law unconstitutional. If that sounds familiar, it is because that is exactly how the Canadian government plans to implement Bill C-34 with the ban first and any potential privacy safeguards or standards to be sorted out years later.
It goes without saying that France and Canada have different constitutions and different systems of review, and that this decision does not bind a Canadian court. However, the parallels are immediately obvious. The French test, which examines whether a limit on expression is necessary, adapted, and proportionate to its objective, mirrors the proportionality analysis Canadian courts apply under Section 1 of the Charter. More importantly, the two concerns the French court identified are also found in the Canadian bill. If anything, the Canadian situation is worse since France’s system of review meant the ban was stopped before anyone was required to verify their age, while absent a court-ordered stay, a Charter challenge to Bill C-34 would come only after the ban is in force and millions of Canadians have already been required to submit to age verification without the safeguards the government promises.
Macron’s posts have celebrated each new country joining the social media ban movement, but the French court decision suggests a different movement may soon emerge, one that rejects ill-considered bans as unconstitutional on both expression and privacy grounds. With Bill C-34 committee hearings ahead and the government’s Charter statement on the bill still to come, the French ruling gives the government the opportunity to change course before it risks a Canadian court delivering the same message.
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