New Zealand may ban social media for young users

A National Party MP has recently added a new bill to New Zealand Parliament’s Members’ bill biscuit tin, intended to protect young people from bullying, inappropriate content and social media addiction. The Social Media (Age-Restricted Users) Bill (NZ Bill) clearly resembles Australia’s Online Safety Amendment (Social Media Minimum Age) Bill (Australia Bill), which will come into force by December 2025.

So, is there going to be a social media ban in New Zealand?

What we know so far

It’s important to note that Parliament isn’t yet debating the NZ Bill. Catherine Wedd, a member of Parliament, has placed the NZ Bill in the draw to be one of ~70 bills randomly selected from the biscuit tin (and yes, it’s an actual biscuit tin) to be debated by Parliament, with a draw usually occurring every fortnight. The NZ Bill could skip the draw altogether if at least 61 MPs who are not New Zealand Ministers support it. Since the current coalition Government could theoretically gather the support of 61 MPs relatively quickly, it is interesting that the NZ Bill has been introduced as a Members’ bill, indicating that it doesn’t currently have the formal support of the coalition. This may suggest we’re still some time away from any legislation being passed, although the Prime Minister has noted his intention to make a social media ban part of the Government’s work programme.

Aside from the banter over who really invented the pavlova or flat white, Australia and New Zealand often see eye-to-eye on regulation, making for consistent law for foreign companies to understand and follow. The NZ Bill, as set out by Wedd, closely mirrors the Australia Bill. In some parts the NZ Bill is almost a carbon copy of the Australia Bill.

Aims

The NZ Bill states that its aim is to align New Zealand with international efforts, including those of Australia, to reduce the risks of harm from social media to young people, safeguard their privacy and encourage healthier social interactions. Similarly, the Australia Bill is said to be about protecting young people and supporting parents to look after their children’s wellbeing.

Specifically, both bills seek to reduce harm from certain social media platforms (Platforms) to users under 16 years old (Young Users), by requiring Platforms to disallow Young Users from holding Platform accounts.

Reasonable steps

A substantive difference between the two bills is that the NZ Bill requires that Platforms take “all reasonable steps” to prevent a Young User from having a Platform account. Meanwhile, the Australia Bill only requires platforms to take “reasonable steps”. The inclusion of the word “all” in the NZ Bill would set a higher standard on Platforms than its Australian counterpart.

The NZ Bill specifies that a Platform can take reasonable steps by acting reasonably to prevent a Young User from having a Platform account. In doing so, the Platform must consider and weigh up all relevant matters, including the Young User’s privacy and the reliability of the method used to determine they are above the age restriction (16+). The Australia Bill gives less specific guidance on what amounts to reasonable steps, instead outlining how not to do it - Platforms must not force Australians to share their drivers' licences or passports, for example.

Regulations

Both the NZ Bill and Australia Bill allow for the creation of regulations that deem and exempt those Platforms that are 16+. At this stage, the NZ Bill allows the minister in charge of the NZ Bill almost complete discretion to exempt certain Platforms from being 16+.

It’s harder to exempt Platforms from being 16+ in Australia. The Australia Bill sets out that, for the relevant minister to exempt a Platform from being 16+, they must be satisfied it is reasonably necessary to do so to minimise harm to young people, after receiving and considering advice from the relevant commissioner and, optionally, seeking and considering advice from any other relevant authority or agency.

The NZ Bill follows this stricter process when it comes to deeming a Platform as 16+ in New Zealand and additionally requires the minister to consider advice from any other relevant entity, as well as to consult the Platforms themselves. In this way, the NZ Bill arguably makes it harder for Platforms to be made 16+ than it is to exempt them from being 16+ (if they were to fall under the ban to begin with).

Privacy

Although the bills don’t specify it directly, Platforms will likely verify users as 16+ through the collection of biometric information, which is sensitive personal information unique to individuals. The Australia Bill goes further than the NZ Bill to protect the privacy of those completing the age verification process, including by disallowing government IDs and naming Australia’s Information Commissioner as a required consultant before the relevant minister makes any regulations about the collection of certain information. Australia’s Information Commissioner can also write directly to a Platform and publish this statement publicly where they are satisfied a Platform has interfered with someone’s privacy.

Moreover, where a Platform uses or discloses personal information otherwise than for the purpose of age verification, unless the individual consents or the use/disclosure is covered by a relevant exception in the Australian Privacy Principles, the Australia Bill states this is an interference with privacy covered by the Australian Privacy Act.

If Platforms do get it wrong, the NZ Bill sets out a NZ$2 million fine, which although large, pales in comparison to Australia’s AU$49.5 million fine (the equivalent to 150,000 penalty units as calculated by the Australia Bill Fact Sheet). Perhaps addressing New Zealand’s high standard for Platforms to take “all reasonable steps”, the NZ Bill contains a defence for any Platform that fails to prevent a Young User from accessing the Platform where this was due to reasonable reliance on the information provided by the Young User. This suggests that Platforms would not be fined if, for example, the Platform relied on convincingly falsified documentation provided by the Young User which made them appear 16+. The Australia Bill does not have this same defence.

Room for improvement

There is clearly room for more detail to be specified in the NZ Bill, which we expect will come if it progresses through Parliament. The New Zealand Act Party – part of the current coalition Government – has publicly described the NZ Bill as “simple, neat and wrong”, indicating that the NZ Bill may need cross-party support before introducing a social media ban at all.

Another interesting aspect of a ban is whether it could have unintended consequences that harm young people. Amnesty International Australia stated last year that the Australia Bill failed to acknowledge that social media also provides young people with benefits such as inclusion, social connection and belonging, which are protective of mental health, particularly for minorities who seek connection outside their physical environment. We would expect any social media ban introduced to Parliament in New Zealand to be subject to public consultation, which would mean unintended consequences could be further considered.

Next steps

If the NZ Bill were to pass in its current form it would take effect 6 months after the Royal assent, meaning Platforms would have a lot of work to do in a short space of time to ensure compliance. However, until the NZ Bill (or an alternative bill) is introduced to Parliament, a social media ban is not formally being progressed in New Zealand. New Zealand’s Office of the Privacy Commissioner is also currently developing guidance on how to implement best practice privacy practices relating to children and young people, and it will be interesting to see how the NZ Bill might draw on this, as Australia has done in the Australia Bill.

While the content of the social media bans may be similar, New Zealand is still a long way from making it law as Australia has done. We will be following this issue with interest. If you would like further advice, please contact our team.

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