Does the European Union's digital lifeline stay afloat?

The EU's Efforts to Protect Minors Online.

Originally published in La Silla Vacía https://www.lasillavacia.com/red-de-expertos/red-de-democracia-y-tecnologia/los-inciertos-caminos-de-la-union-europea-y-ee-uu-para-obligar-a-las-redes-a-proteger-a-los-menores/.

This summer, children in Europe will be safer and better protected during their vacations. At least, that is the European Commission’s goal. It’s not about handing out sunscreen or stationing lifeguards on Mediterranean beaches. In this case, the European Union’s executive body will seek to keep them away from their smartphone screens.

The conversation about protecting children online is moving at a dramatic pace. Following Australia’s lead—which in December 2025 banned the use of social media by minors under 16—more and more countries have decided to take a similar path. In our region, Brazil enacted and regulated the Digital Statute for Children and Adolescents (ECA Digital), which we have already discussed here. In Europe, Austria and Poland, among others, are seeking to require large internet platforms to verify the age of their users. The United Kingdom also announced a ban on social media use by minors under 16, effective in January.

The European Two-Pronged Strategy

The speed and scope of these proposals prompted the European Commission to get involved, pursuing a two-pronged strategy. On the one hand, it announced that it will propose new legislation establishing a minimum age for social media use. The final report from a panel of experts that developed recommendations on the legislation’s potential content proposes banning the use of social media and other services by children under 13. Furthermore, it recommends that, in order to offer their services to users under the age of 18 but over 13, providers must first demonstrate that their services are safe—that is, free of content and features that are inappropriate or risky for that age group.

Meanwhile, the Commission has not hesitated to use the Digital Services Act (DSA) to achieve these objectives, as developments in recent months have shown. Thus, it has preliminarily found Facebook and Instagram liable for failing to adequately assess or mitigate the risks their interfaces pose to users’ mental and physical health, especially that of minors. Notably in line with the expert group’s recommendations, it has determined that features such as infinite scrolling, autoplay, persistent notifications, and hyper-personalized recommendation systems exploit the vulnerability and inexperience of young people and can lead to addictive behaviors. Furthermore, under Article 28 of the DSA, which requires high standards of privacy and security by design for minors, the Commission accused TikTok of using inappropriate default settings. It determined that keeping teenagers’ accounts public exposes them to cyberbullying and contact with potential predators, and that displaying their content in the “For You” feed amplifies those risks by prioritizing the virality of content over the protection of minors. Previously, it had found several pornographic platforms to be preliminarily liable for failing to implement effective age verification measures that would prevent minors from accessing them.

A Thorn-Filled Path and an Uncertain Future

The European Commission’s two-pronged strategy is not without risks. Regarding the imposition of a uniform age limit through new legislation, it is worth considering the example of France, where a recently approved measure banning the use of social media by minors under 15 was ruled unconstitutional. The Council found that it infringes on minors’ right to freedom of expression by limiting access to certain services without basing that restriction on an assessment of the services’ features, the risks they pose to users, or the protections available to them. Furthermore, it deemed the law disproportionate because it applies equally to all minors under the age of 15 without taking into account their age, level of maturity, or family situation, nor does it provide for those exercising parental responsibility over each minor to decide, in a deliberate and informed manner, whether to lift or limit that prohibition. Finally, it argued that the regulation violates the right to privacy by requiring anyone who wishes to access social media to prove they are over 15 years of age, without establishing the conditions that such age verification must meet.

On the other hand, the use of the systemic risk framework under Article 34 of the DSA appears to be a tempting alternative due to its flexibility. The flip side of that flexibility—due to the lack of precision in the definition of its terms—is that its application in this case is potentially at odds with the principle of legality. A significant indication that the issue of “addictive design” may fall outside the scope of the DSA is that it is one of the most prominent issues in the draft Digital Fairness Act (DFA), which is soon to be considered. If any of these platforms were found to be in violation of the law and took their case to the Court of Justice of the European Union, the Commission would have to prove that the prohibition on “addictive design” clearly arises from the terms of the law, that the design features in question (notifications, autoplay, infinite scroll) do indeed exceed that threshold, and that this poses a risk to the mental health of minor users. In any case, the decision to aggressively apply the risk-based approach appears to stem from the intention to force platforms to negotiate the “voluntary” introduction of changes, motivated by a desire to avoid fines and the uncertainty of the outcome of potential litigation. 

Regulation by Other Means?

Meanwhile, in the United States, Meta has just settled a lawsuit against it through an out-of-court settlement under which it agreed to pay between $12 billion and $18 billion and to modify a number of features on its platforms for its teenage users: time limits, “night” and “school” modes, greater control over the feed, hiding the number of likes on posts, removing certain photo filters, improvements to user age verification mechanisms, and strengthening parental controls. The lawsuit, filed in 2023 by a group of U.S. state attorneys general, alleged that Meta violated a series of state and federal laws related to the privacy of minors and, if the lawsuit were to be successful, could have left Meta facing a fine of up to $200 billion. The agreement, which some argue increases the level of intrusion into minors’ privacy by Meta, calls on YouTube and TikTok to make similar commitments. 

In short, the European Commission and U.S. prosecutors appear to be pursuing a similar strategy: forcing a settlement in a specific case against the latent threat of potential financial penalties and obtaining “voluntarily” from “big tech” a series of platform changes that, as some argue (both in Europe as in the United States) could not lawfully obtain through regulation.