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Artificial intelligence in regulatory tribunals: key principles from guidance for judicial office holders
Harriet Farquhar
The Children’s Wellbeing and Schools Act 2026, the Act passed during the consultation, does not require the Government to bring in a social media ban for children. It amends the Online Safety Act to give the Secretary of State a wide discretion to decide whether there should be an outright ban or other restrictions. The Government have so far only committed to imposing “some form of age or functionality restrictions for children under 16”. If the Government stops short of a full social media ban for children, the consultation gives an idea of what functionalities might be restricted: live streaming, the ability to send nude images or videos, disappearing content, location sharing, and being able to connect with or talk to strangers were all given as examples of potentially high risk functionalities. The Act gives the Government the power to impose different restrictions on children of different ages. It is possible that we could see greater restrictions imposed on younger children.
We may feel confident that we can name a number of ‘social media’ platforms, but a legal definition of what constitutes social media is more elusive. Consultees were specifically asked to input on this issue.
The Australian legislation defines ‘age restricted social media platforms’ as an electronic service where:
(i) the sole purpose, or a significant purpose, of the service is to enable online social interaction between 2 or more end users;
(ii) the service allows end users to link to, or interact with, some or all of the other end users;
(iii) the service allows end users to post material on the service;
There is scope in the Australian act to supplement this definition through secondary legislation, and for platforms to be specifically designated in secondary legislation.[1] No platforms have yet been designated by way of secondary legislation. The Australian eSafety Commissioner has said that it considers that Facebook, Instagram, Threads, Kick, Reddit, Snapchat, TikTok, Twitch, X (formerly Twitter) and YouTube are within the definition; and that Discord, GitHub, Google Classroom, LEGO Play, Messenger, Pinterest, Roblox, Steam and Steam Chat, WhatsApp, and YouTube Kids are not. Reddit is challenging whether it should be an ‘age restricted social media platform.’, which could be the first of many challenges.
The UK consultation asked respondents what factors they considered important when determining which apps, sites or services should be age restricted, and gave a number of example factors including user-to-user interaction, the ability to post material, persuasive design features, risky functionalities, the ability to generate non-text mediums such as video or images, the target age group, and the size of the service. It also sought views on which apps, sites or services should be excluded from any restrictions, suggesting internal business services, services with limited functionalities and services provided by persons providing education or childcare.
The Children’s Wellbeing and Schools Act 2026 gives the Secretary of State powers to prevent or restrict access by children of or under a specified age to ‘specified internet services’, or to specified features or functionalities of such services. The Government’s view is that this definition is broad enough to empower it to impose restrictions on social media platforms, gaming platforms and AI chatbots. Further secondary legislation will be needed to specifically target social media platforms. It is not clear from the Act whether the Secretary of State would include in such legislation their own definition of what social media is or prescribe specific platforms. It would be a significant challenge to develop and maintain a list of platforms, given the rapid pace at which technology develops and online habits change. Decisions on whether to designate a platform as a social media platform requiring age restrictions would in all likelihood result in legal challenges.
A key question relating to any ban or restrictions on the use of social media by children will be how users’ ages will be assessed to decide whether their access must be restricted or denied. In response to the Australian legislation, platforms came up with a number of innovative ways to age assess users. Under the UK’s current online safety regime certain service providers are already required to put in place highly effective age assurance to screen their prospective users and prevent children accessing their sites. It is possible that the Government could require social media platforms to put such age assurance in place to ensure a ban or restrictions are effective, or they could be given greater latitude to decide on their own processes.
The Government has indicated that they will respond to the consultation in the summer with final decisions to the key questions set out above likely to come later in the year. Though the consultation has closed, their remains scope for stakeholder engagement. Any secondary legislation passed to impose restrictions or bans will be open to challenge by way of judicial review.
[1] S.63C Amendment of the Online Safety Act 2021
Fred is a senior associate with more than 10 years of legal experience. He works within the Public Law Department and International Crime Group. His clients have included businesses, regulators, trade associations, religious institutions, schools, education providers, charities, and private clients including high net worth individuals, and senior political and business figures. He has worked on a range of public law challenges and matters including public inquiries and independent investigations; inquests; judicial review proceedings; tribunal appeals; challenges to Interpol Red Notices; defences against extradition requests; and applications to the European Court of Human Rights. He also advises in connection with information law, with a particular focus on data protection.
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Harriet Farquhar
Fred Allen
Libby Klinke
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