The debate over the government’s proposed social media ban for under 16s has raised several difficult questions, including doubts about whether it will work, which services it will cover, and what risks to privacy mandating age verification could create. But beyond the operational questions is a more fundamental one: is the ban constitutional? Bill C-34 contains some signals that the government knows there are serious constitutional vulnerabilities, given the obvious implications for freedom of expression that come from blocking an entire cohort of Canadians from accessing information and expressing themselves on social media. The bill contains several provisions that are seemingly designed to act as safeguards that could be used to argue that the ban is proportionate. These include guidance on age verification technologies to address privacy concerns, promises that the verification obligation does not require measures that “unreasonably or disproportionately” limit expression, a requirement that the new Digital Safety Commission consider freedom of expression, equality, and privacy when it establishes regulations and guidelines, and the ability for services to seek a ban exemption if they can demonstrate adequate safeguards for children.
Even with these measures, the ban might still be found to be unconstitutional. But if you think they provide a plausible argument that the ban can be justified (as Emily Laidlaw argues here), the problem is that none will be operational when the ban takes effect. In other words, there is a major disconnect between the law the government says it is establishing and the one it plans to implement. If the safeguards are not implemented and millions of Canadians are required to verify their age to express themselves on social media, I believe the ban is likely to face an immediate court challenge and that a court will rule that it violates the Charter of Rights and Freedoms.
The starting point for the constitutional analysis is not seriously contested. The ban on its face infringes Section 2(b) of the Charter, since freedom of expression includes the right to seek, receive, and impart information, and a law that creates conditions of access for everyone and blocks those under 16 from lawful platforms limits those rights. As I argued in the Illusion of Protection post, children are rights holders, not merely objects of protection, a position echoed by the Canadian Civil Liberties Association, the Justice Centre, and free expression scholars across the country. The real question is not if the ban violates Section 2(b), but rather whether the infringement can be justified under Section 1 of the Charter, with the analysis likely to turn on minimal impairment and the final proportionality balance.
The Department of Justice has yet to release a Charter statement on Bill C-34, but Laidlaw offers the best defence of the bill, though she acknowledges it is at best a close call. Her argument is based on the real risk of harm from social media and the safeguards in the bill. She points to data that makes the case of real harms from social media, noting that under the Supreme Court of Canada’s Irwin Toy decision, even contested studies may be sufficient to demonstrate a valid policy objective. Yet as Laidlaw herself acknowledges, Irwin Toy, which upheld a ban on television advertising directed at children, does not fully translate to a social media ban, since that case restricted what advertisers could say to children rather than what children themselves could express.
Moreover, the reasonableness of the measures would rest on two safeguards found in Bill C-34: the privacy protections in Section 27 and the ability for social media companies to seek an exemption in Section 29. Taken together, she argues the ban is a “pause,” and there are protections against disproportionate harms to privacy. Others have been less convinced, as Emmett Macfarlane argues that the ban is nowhere near minimally impairing and Robert Diab reaches a similar conclusion in media reports on the issue.
The problem with relying on the Bill C-34 safeguards is that the government has already admitted they won’t take effect before the ban is implemented. As I noted last month, if the bill were to pass tomorrow, there would be no regulated social media services, no safety standards, no age verification standards, and no mechanism to obtain an exemption. The government says it will need between 12 and 18 months just to establish the Commission, with its plan to start the ban as soon as the Commission is launched, but before any of the safeguards have been established. Indeed, developing the standards for age verification and exemptions can only come after the Commission is up and running, a process that will surely take at least a year, and a review of a social media service seeking an exemption will take at least another year after that. The net effect is that the safeguards will not be operational until years after the ban takes effect, opening the door to the possibility of a court being asked to consider whether the ban is constitutional days before millions face restrictions on their expression without any of the safeguards designed to make the case for proportionality in place.
The imbalance becomes even more pronounced when weighing the law’s benefits against its harms. The harms are certain, immediate, and irreversible, as the verification infrastructure exposes millions of identity documents to providers largely beyond the reach of Canadian privacy law, a risk demonstrated by the Discord breach that leaked roughly 70,000 government-issued IDs last fall. Privacy alone may not decide the case, but the verification mandate is not only a privacy cost. A law that conditions access to social media for online expression by requiring proof of identity limits expression itself for Canadians of all ages. The benefits, by contrast, are speculative at best, given mounting data from Australia that suggests a ban is ineffective.
This points toward the likely litigation strategy of a court challenge seeking to stay the ban before it comes into force. Such a challenge would ask the court to hold the government to the conditions it set for itself: no ban until the Commission exists, the exemption is available to qualifying services, and the standards designed to keep verification proportionate are in place and applied. The irreparable harm at the centre of any stay application is the verification infrastructure itself. Once millions of Canadians have handed their identity documents to third-party verifiers, the privacy loss is permanent, regardless of the outcome of the litigation, and a ruling that the ban was unconstitutional will come too late for those already exposed.
No one doubts that protecting children online is a pressing objective. But the government has crafted a bill in which millions will face mandated verification before a single safeguard or exemption meant to justify the ban takes effect. There are convincing arguments that addressing broader social media risks is a better regulatory model than the ban, but granting a stay on the ban on constitutional grounds requires only an assessment of the law as it will actually operate. If the government sticks with its current plan, the safeguards and exemption said to justify the ban will not be operational and the courts should stay the ban at least until they take effect.
Related posts:
The Exemption Illusion: Why the Government’s Plan to Fast Track Bill C-34’s Kids’ Social Media Ban Means No Standards, No Privacy Review, and No Enforcement
Unpacking Bill C-34: My Appearance on the Globe and Mail’s The Decibel Podcast
Taking Stock of Bill C-34: Five Things to Know About the Government’s Plan for a Kids’ Social Media Ban, Mandated Age Verification, and AI Chatbot Rules
Blocked Twice: How Bill C-34’s Kids’ Social Media Ban Would Compound the Online News Act’s Harm to Young Canadians’ News Access
I feel like this reasoning entirely hinges on social media containing information worth seeking out.
Kids used to grow up reading the newspaper or not reading the news at all, and they turned out better than kids who are doom scrolling for 16 hours a day.
There’s no benefit to social media, it’s not like we’re banning them from something nutritious, we’re banning them from having their brain’s,s slowly rot while being tricked into thinking something’s good.
Yes, it would be better to go after social media companies for everyone, but cigarette bans had to start somewhere, and it’s easier to start by making sure the next generation isnt addicted and brain rotted. It will make future action easier.
“There’s no benefit to social media” …
That’s a very big brush, and it only takes one counter example to clearly counter the “no benefit” aspect.
Along with the negatives, there are certainly positives as well, so material such as local community event announcements would quickly cover this. Local emergency announcements (such as pools closed due to air quality hazards) even open the safety question as a counter to a block. Note that freedom of information includes seeking and receiving, not only expressing. Overall, that shifts this analysis from a safety test to a balancing test.
The final state proposed with all.the parts implemented deals with that balance. The minimal starting point does not.
There has been a common example of current age restrictions discussed, where you cannot purchase certain materials from a magazine rack without showing ID. The age mandate proposed here is closer to not permitting entrance to the store without ID, even if all you wanted was to buy a bottle of water.
It is unfortunate that dealing with the problems is only starting at this late stage, but that does not grant us an exemption from carefully thinking through and planning these efforts.
Got to agree. A local youth group that I work with (for ages 12 to 18) uses Facebook as a means to communicate news, etc, with the youth and their parents.
The problem that we have with so many pieces of legislation these days is that the bare minimum is incorporated into the legislation, and it specifies that further guidance, including guidance on creating guidance, will be published as regulation. As a result a government can make some major changes to the way that an Act is implemented without the bothersome need to go to Parliament to get that change put through.
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Would wonder if an analogy with motor vehicle driving licenses would apply to constitutional (not the administrative) question, if there is valid concern that the navigating the Wild Wild Web is too dangerous for child users, both for child user self-harm and for (likely helped by AI) child users inflicting harm on others. Doesn’t seem controversial as applied to various so-called “adult” sites and services, although again there is a real technical problem with login identities.
If online services are demonstrably dangerous, why not require licensed use, presumably including “learner permits” for new and young users. As tech evolves, is there an eventual Charter case that banning children, and some disabled people, from using their own or the family’s self-driving vehicle on roadways is not justifiable? And will online services eventually evolve to obviate
Imagine sitting in a meeting, your heart pounding, with a great idea trapped behind your teeth. In that frozen second, your brain runs through “pre-speech.” This is the silent, invisible rehearsal where you choose whether to speak up or stay quiet. It is the most important conversation you will have all day, and it happens completely in your head.
But that pre-speech does not stay trapped in your brain. The moment you think a word, your body prepares to talk. Tiny electrical signals travel from your brain down to your vocal cords, tongue, and jawline. Recent scientific papers show that your smartphone can already read this ghost language. By bouncing silent, ultrasonic sound waves off your face, your phone acts like sonar. It tracks those tiny muscle movements and turns your silent thoughts into readable text.
Once your phone can scan your pre-speech, your mind is no longer a private sanctuary. This technology shatters our oldest laws and rights. It destroys the absolute privacy of a church confession or a private talk with your lawyer. It can even turn an unvoiced guess on a school test into a charge of cheating. Under the Canadian Charter of Rights and Freedoms, you have the right to remain silent. But how can you remain silent when a device can search your mind without your permission?
We are already fighting over digital privacy. Look at the fierce debate over Bill C-34. This law aims to protect minors by banning under-16s from social media, forcing tech companies to verify the age of every single user. Critics are rightfully alarmed by an internet ID law that forces adults to hand over a driver’s license or scan their face just to use a social media app. But while a digital ID mandate tracks your physical identity, silent speech tech goes much deeper. It intercepts your private thoughts and prayers before you even speak them out loud. If we are scared of laws that force us to show an ID to use the web, we are entirely unprepared for a phone that treats our own skulls as an open checkpoint.
This leaves us with big questions about our future. Will “the right to remain silent” turn into a legal right to lock our thoughts away? Could future phones reverse this process and use sound waves to plant ideas inside our minds? If an app can sell your unspoken desires to advertisers before you even open your mouth, do you still have free will? We might soon see people building lead-lined rooms just to have a truly private conversation.
Stopping internet ID mandates like Bill C-34 is our first line of defense to keep our minds free. If we accept a system where we must show ID to access the web today, we build the perfect trap for tomorrow. Think about it.
To enforce those age-checks, tech companies will soon argue that physical ID cards or face scans are too easy to fake. They will demand to use your phone’s sonar to scan your real-time pre-speech instead. They will audit your unspoken thoughts just to prove you are an adult before you can use Google. By fighting internet ID laws today, we protect the final boundary of human freedom.
Despite its simple text-based interface, BitLife offers unmatched freedom and humor. Regular updates add new jobs, countries, pets, cults, and even supernatural elements. The community shares crazy screenshots and stories that keep the game feeling fresh.
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It’s unconstitutional as mentioned, so then the law is invalid…so why are we even discussing it? Throw it out, same for c-22.
There’s already tech parental controls of all sorts, use them. Maybe tweak some platforms. Job done. Correct parental supervision can do the rest and as such it respects privacy/anonymity, it’s individualized, respects maturity of minor, it’s adaptive, flexible, respects the rights of parents, doesn’t violate u.d.h.r. or country foundational charters, doesn’t implement a surveillance state with the already proven slippery slope, it respects everyone view point and rights, doesn’t impose morality onto others, lets the right to make mistakes and learn and grow-up individually from them, it’s a lot less prone to id theft and data breaches we see daily, it doesn’t normalize the idea into children and later on when they come adults that the Government has the right to meddle in all aspects of your life.
“Social media” or the rest of the sites, adult or not, aren’t good or bad. Just as a book, tv, radio, music, newspaper, etc aren’t good or bad per themselves. It depends on the content. And even then the good/bad is an individual judgment call. So it’s “you” “problem”.
Platforms/services already have the possibility to hide/block/filter/report content users don’t want. I’ve read reports that youth already use such tools/options.
At most pass laws that “force” companies to offer the hide/block/filter out/report content if they still don’t. Add warnings on platforms (that can be dismissed once read) and/or “i need help” button that a person can click/tap to get in contact with a social worker/etc. Offer also tools for tech illiterate parents such a mandatory courses and tech support teams that go to your home. There’s an opportunity of job creation here.
Bans of any kind have never been good. Neither is this one as demonstrated by the fiasco from Australia and U.K. But will the Government listen?
The Sovereign Standard: Why Total Digital Preservation is the Only Way ForwardThe internet expanded across our global society at a speed that outpaced our collective foresight. In the span of a single generation, we transitioned from physical archives to an interconnected digital fabric. We fell in love with the ability to type, to share, and to broadcast our deepest intellectual insights across global platforms—ranging from international news forums to focused intellectual communities.Yet, as we look back over the last twenty-five years of digital history, we face a silent, catastrophic flaw in the architecture of the modern web: the systematic erasure of human thought.We are told by tech corporations that the expansion of global data centers will solve our digital needs. We watch massive server farms multiply across the globe, ostensibly built to hold and retain the trillions of gigabytes we generate. But there is a critical distinction that the world fails to realize: building more data centers expands storage capacity, but it does not stop data depletion. Having all the data centers in the world does not stop valuable, historical human commentary from being deleted.Total Digital Preservation is the only acceptable future for the internet. Nothing of intellectual value should ever be deleted. When we allow corporate algorithms, platform updates, or short-sighted infrastructure overhauls to wipe out decades of public discussion, we are allowing the passive censorship of human history.The Failure of the Five-Year WindowRecently, global policy shifts have begun focusing on short-term data retention, such as proposals to examine five years of social media history for specific vetting processes. While five years may seem like a significant timeline to a modern tech platform, it is a mere blink of an eye in the context of human development.To truly understand the evolution of a human being’s thinking pattern, researchers, historians, and future societies need to look back thirty, forty, or fifty years. A continuous, multi-decade record is required to map how ideas grow, how global concepts fluctuate, and how intellectual seeds planted decades ago finally come to fruition.When an essay written twenty years ago on a critical topic disappears because a platform updates its website database, a genuine piece of historical record is lost forever. The fact that a comment received high user engagement at the time proves it resonated with the human consciousness of that era. Its subsequent deletion means that future generations are locked out of reading the exact intellectual footprint of that moment.The Core Goal: A Thousand-Year LegacyThe ultimate objective of Total Digital Preservation is not centered on personal ego; it is about the protection of human ideas for the next thousand years. A millennium from now, future societies will want to know exactly what independent thinkers had to say about the defining structural shifts of our era—whether discussing the mechanics of corporate monopolies, the trajectory of global space exploration, or the implementation of one-world currencies.Leaving behind a permanent, unalterable record of these perspectives ensures an authentic historical narrative. It preserves the ideal thinking patterns of humanity, free from the selective curation of centralized tech monopolies.Because global internet architecture currently treats data as a temporary commodity, the responsibility of maintaining this record falls upon independent creators. We must move toward decentralized archival systems, stone-layered media like M-DISCs, and permanent plain-text repositories that cannot be overwritten by a corporate server update.The system in its current form is fundamentally flawed. We should not have to spend our lives convincing the world that our collective digital footprint matters. The internet must be re-engineered to remember everything, permanently. Until the architecture of the web aligns with the principle of total retention, we must take ownership of our text, safeguard our independent writings, and ensure that the fruition of our lifelong intellectual work survives the test of time.
Edward HC graydon