If everybody knows that the captain lied, as Leonard Cohen sang, then whose problem is it?
“Everybody knows” nobody reads the terms & conditions before clicking OK. Too often this cynicism is turned against the humble end user as if they’re at fault. But if platforms know their agreements have not been read and understood, yet they keep foisting them on customers, then surely the agreements are not valid nor enforceable.
Something else “everybody knows”: kids are getting around the age gates in Australia’s new under-16 social media restrictions.
The law requires Age-restricted social media platforms to “take reasonable steps to prevent Australians under 16 years old from having accounts on their platforms”.
So, if everybody really does know the age gates don’t work, then they can’t be regarded as “reasonable steps” and then this becomes the platform’s problem.
Legal age limits are thought by many critics to be a bit soft. Everybody knows they are imperfect but proponents stress that limits aren’t supposed to offer complete protection. In part they help set a new social norm, and help strengthen parents’ ability to steer their children away from harm.
But I also see the new hard powers within the legislated age limits to reign in Big Tech. In coming months, benchmarks for “reasonable steps” will become clearer.* Social media businesses are amongst the most technologically sophisticated businesses on the planet. They should have no difficulty managing reasonable age enforcement. And if they can’t (or won’t) they the consequences can be severe.
Social media minimum age rules are often compared with alcohol laws — and these have a tough core. If children buy alcohol at licensed premises, then they have only committed a misdemeanor. But if it turns out that the business knows that its outlet isn’t trying hard to verify customers’ ages, then that is a much more serious offence.
Image attribution: Original Author, Nick Youngson https://www.picpedia.org/handwriting/t/terms-and-conditions.html. Licensed under Creative Commons 3 – CC BY-SA 3.0.
* Footnote: Non-lawyers sometimes poo-pooh the “reasonableness” tests as being too loose, but they’re commonplace in governance. Australia’s e-Safety Commissioner has explained carefully how this test for age gating will develop over time:
What ‘reasonable steps’ means for compliance and enforcement:
Whether a platform has taken reasonable steps is contextually dependent and requires a review of both the regulatory landscape and business circumstances together. It is not a prescriptive test with a one-size-fits-all approach but instead requires a review of all steps taken in totality for an accurate and objective review of whether a platform has complied with the [social media minimum age] obligation. Enforcement action requires sufficient evidence that the platform has not taken reasonable steps to prevent children aged under 16 from having accounts, and (where court proceedings are pursued) what is ‘reasonable’ is ultimately a question for the courts to determine on the evidence in the context of the platform’s service, technological feasibility and the regulatory landscape.”