Koffels News

Not long into what has been described as a bellwether federal trial, Meta has agreed to one of the biggest settlements in state consumer protection history. The US$17 billion settlement, which converts to approximately AU$23-24 billion, followed claims that the platform knowingly exposed users to mental harms.

In a news release statement, Virginia’s Attorney General Jay Jones stated that:

“For years, Meta intentionally deceived the public about the addictive and harmful design features that have wreaked havoc on youth mental health. I am elated to announce a settlement agreement that will put an end to these dangerous practices and deliver meaningful relief that will protect children from online harm.”

Many state attorneys general in the United States were part of the initial investigation into Meta.

However, the settlement extends beyond the multi-billion dollar payments.

On both its Instagram and Facebook services, Meta has agreed to implement a variety of safety features including:

• Robust age assurance for age verification,
• Limited school-time access, involving no push notifications between 8:00 am and 3:00 pm,
• A combined two-hour time limit across Instagram and Facebook,
• Mandatory pauses after 15 minutes of continuous use,
• Blocks at night between 12:00 am and 6:00 am, and
• Age-appropriate content controls, particularly for content that relates to bullying, eating disorders, suicide and self-harm.

In an open letter, Meta pushed for other giants, like YouTube and TikTok, to join them in implementing these safety features.

The recent Meta settlement also follows the decision of K.G.M. v. Meta et al. in March this year, where a Los Angeles jury found that Meta and YouTube were liable for engineering platforms that were dangerous and posed harms to teens. The jury found the companies were negligent in the design of the apps, and that they failed to warn users about the dangers the apps presented.

The plaintiff, a 20-year-old woman, testified that by age six she had become addicted to YouTube, and that by age nine, she had become addicted to Instagram. She said by age ten she had become depressed, was engaging in self-harm and had strained relationships. At thirteen, she was diagnosed with social phobia and body dysmorphic disorder.

These decisions are being reached at the same time that global pressure builds on social media giants to ban young users.

Australia became the first country to legislate a national minimum social media age of 16. Denmark, Spain, Brazil, Austria, Britain and New Zealand are among other countries which are taking similar measures.

The recent Meta settlement and K.G.M. decision suggest that social media companies may face liability when their platform design is found to contribute to foreseeable harm.

However, Australia could be moving towards legislating this obligation.

In the federal government’s response to AI and social media concerns, a Digital Duty of Care could soon be a part of the Online Safety Act 2021 (Cth).

The new duty of care follows a key recommendation emerging from a statutory review of the Act

‘puts the onus on AI companies to build in safety by design and proactively address potential harm’.

An issues paper on the duty has been published, outlining what to expect in the legislation. The issues paper states that the duty will apply not only to AI companies but to all online services currently within the scope of the Online Safety Act 2021.

This includes, but is not limited to: social media, messaging apps, online games, online dating services, generative AI, online pornography services, hosting services, internet service providers, search engines, app stores, and equipment and operating systems services.

The Digital Duty of Care will place a proactive obligation on the industry and be focused on processes and systems.

The proactive obligation means the responsibility for protecting the online safety of Australians is placed on online service providers, and establishes that they are in the best position to assess and mitigate the risk of serious harm on their services.

The focus on systems and processes involves effective systems and processes being in place which are ‘reasonable, risk-based and proportionate’ and ‘mitigate the risk of foreseeable serious harm’ to users.

The duty is breached when the service provider fails to take reasonable steps to maintain systems and processes, and appropriately address harmful content or activity.

Reasonable steps as identified by the issues paper include:

• Providing a safe online environment as far as reasonably practicable,
• Preventing, monitoring and appropriately addressing content that is illegal or harmful to young people, and
• Ensuring the safety of service features (such as content recommendation and AI).

However, the practicality of the duty has been questioned.

Some researchers believe that while the duty is necessary, ensuring that it is working will be more complicated. There is some concern that relying on transparency and the ability for platforms to self-assess will lead to limited insight into operations. Instead, researchers push for greater access to platform data that allows them to assess platforms and hold them accountable in the public interest.

A bill is yet to be presented to the federal parliament for the duty; however, draft legislation is expected later this year. A previous bill for a Digital Duty of Care was proposed in 2024; however, it has since lapsed. How the duty will operate in practice remains to be seen. Nonetheless, it could play a significant role in litigation against tech giants in Australia.

Ultimately, both the cases in the United States and the proposed federal legislation begin to convey an important message: online services are not necessarily immune to liability regarding child safety and protection.