National child online safety measures expected pre-KIDS Act

Gemma Erskine of Pinsent Masons, who specialises in online safety law, was commenting after MLex reported (subscription required) that some EU countries remain keen to impose national legislation addressing child online safety before the draft EU KIDS Act is finalised.

The proposed new KIDS Act was formally presented by the European Commission last month. It imagines the creation of an EU-wide graduated system of age-related access restrictions and parental controls for digital services, each of which would need to be designed with child safety in mind. It would apply to social networks, video-sharing platforms, app stores, online games, operating systems, AI companions, and chatbots.

The KIDS Act proposal is expected to be subject to intense scrutiny and negotiation in the coming months, with the European Parliament and Council of Ministers having to agree on the wording of the regulation before it can become EU law. With an implementation period also envisaged, it could take years before any new EU-wide measures on child online safety take effect, notwithstanding Ireland’s reported desire to push through one part of the KIDS Act – on safety-by-design – before its presidency of the Council of Ministers ends at the end of 2026.

According to MLex, the timing point was discussed during a call between representatives of national governments of EU member states and the Commission, with some governments articulating their desire to press ahead with enacting national laws on child online safety in the interim. Countries such as France, Spain and Italy have already prepared draft legislation.

EU countries are obliged to notify draft national measures that regulate ‘information society services’, such as online services, to the Commission under EU law. The Commission does not have a veto over such national measures, but the process of dialogue triggered by the notification requirement is designed to ensure new national measures are introduced in such a way that they minimise technical barriers to trade within the EU internal market.

Erskine said: “The prospect of multiple new national laws being introduced across the EU is likely to raise an immediate compliance headache for online service providers. Platforms will need to navigate national requirements in the short term while preparing for the more extensive obligations that will eventually apply under the KIDS Act. That is likely to create a logistical challenge, particularly while they are also seeking clarity on the proposed EU regime and reacting to other developments globally in this area – such as new UK child online safety rules that are anticipated and the effects of the recent settlement in the US Meta case, for example.”

Reflecting on Ireland’s plans to prioritise agreement on the safety-by-design chapter of the KIDS Act, Lauro Fava, also of Pinsent Masons, said there may be strategic reasons to do so.

“Securing early agreement on the safety-by-design rules could help discourage member states from pressing ahead with their own national measures in this area, reducing the risk of further fragmentation across the EU,” Fava said.

“The chapter may also be the relatively easy win. Some of the proposal’s more politically and practically contentious measures sit elsewhere, particularly the rules on age restrictions, age verification and parental consent. Agreement on the safety-by-design chapter would therefore represent progress but would leave many of the hardest issues still to be resolved,” he said.