How to balance freedom of expression and child protection in the digital age? A comparative legal analysis

Mohammed Abbas Mohsin, PhD in Public Law, Diplomatic advisor 

Photo credit: San Jose Public Library, via Wikimedia Commons

  Abstract

    This blog post presents a comparative legal analysis of the regulatory and judicial frameworks governing the balance between the fundamental right to freedom of expression and the state’s pressing interest in protecting children in the digital age. By examining recent landmark decisions handed down by the Supreme Court of the United States, the Court of Justice of the European Union, the French Council of State, the Italian Regional Administrative Court, and the Supreme Court of England and Wales, this paper analyses how the various judicial authorities in those countries reconcile the requirements for age verification on digital platforms with constitutional safeguards and human rights. This post explores the shift in levels of judicial scrutiny, the extent to which procedural requirements under internal market rules (such as the country-of-origin principle) apply, the unique technical and operational challenges faced by collaborative open-source platforms, and the emerging international consensus that, whilst child protection is of the utmost importance, the regulatory measures employed must remain carefully tailored and procedurally compliant to avoid disproportionate restrictions on adults’ freedom of expression and privacy.

    1. Introduction

    The rapid shift from physical to digital media has led to a radical and evident change in minors’ exposure to sexually explicit content, rendering the traditional restrictions imposed on high-street shops ineffective and unable to keep pace with this problem. Governments around the world have responded by enacting comprehensive age-verification laws targeting online commercial platforms. However, these laws inevitably conflict with the fundamental rights of adult users – who have a constitutional right to access age-restricted content intended for adults – and with digital platforms that rely on the free flow of information.

The key legal conflict lies in determining where the state’s regulatory authority to protect the innocence of minors ends, and where the unlawful restriction of adults’ rights begins.

  This comparative legal analysis examines how various democratic legal systems have addressed this tension. Specifically, it reviews the standard of scrutiny applied to digital age verification laws, the impact of federalism and cross-border economic frameworks, and the unique challenges faced by non-profit cooperative structures in this regard.

 

 

2. The US Constitutional Model: Scrutiny and Incidental Burdens

   The American approach is characterised by the Supreme Court’s strict interpretations of the First Amendment to the Constitution.

  In the case of ‘Freedom of Expression Coalition v. Paxton 2005 ’, the US Supreme Court considered an apparent constitutional challenge to Texas House Bill 1181 (H.B. 1181), which requires commercial entities that distribute sexually explicit content harmful to minors to implement reasonable age verification measures .

   The central constitutional debate in the Paxton case centred on the appropriate level of judicial scrutiny to be applied by the Supreme Court.

   Traditionally, regulations concerning content protected by freedom of expression are subject to strict scrutiny, the most stringent standard in constitutional law, which requires the government to demonstrate that the law is the least restrictive means of achieving a compelling .

   However, the majority opinion, delivered by Justice Thomas, held that Bill No. 1181 was subject only to intermediate scrutiny. in its ruling, the Supreme Court held that the state possesses the traditional authority to prevent minors from accessing speech which it deems obscene from its own perspective; consequently, adults are not entitled, under the First Amendment to the US Constitution, to access such speech without first providing proof of their age.

    Based on the principle established by the Supreme Court in United States v O’Brien, 1968 the majority described the age verification requirement as an ‘incidental burden’ on adults’ right to protected freedom of expression, rather than an outright prohibition

   Under the intermediate standard of judicial review (the intermediate constitutional scrutiny standard), the law was upheld because it advances a substantial government interest unrelated to the suppression of freedom of expression, and does not impose a greater burden on freedom of expression than is necessary.

    The Supreme Court noted that the requirement for age verification is a traditional, widespread and legitimate means of enforcing age restrictions, similar to the purchase of alcohol or firearms

  In a sharp dissenting opinion, Justice Elena Kagan—joined by Justices Sonia Sotomayor and Ketanji Brown Jackson—criticised this analysis, describing it as “entirely circular”. Rather than asking the correct constitutional question —“Does this law impose an unjustified burden on protected adult rights?”—

   the majority defined the constitutional right of adults from the outset as “a right subject to age verification”, and then logically concluded that the law did not violate that right; this is a clear circular logical fallacy that assumes the validity of the conclusion to be proven in order to evade the application of the strict scrutiny standard.

       The dissenting opinion (written by Justice Kagan) held that Texas House Bill 1181 imposes unjustified restrictions on the constitutional rights of adults by virtue of its communicative content—as a direct, content-based regulation—and must therefore be subject to strict scrutiny, in accordance with decades of case law, including the cases of Sable,  Playboy,  Reno and Ashcroft II.

  Justice Kagan emphasised that requiring adults to provide sensitive personal information in order to access controversial content imposes an unacceptable ‘chilling effect’, particularly on the internet, where users fear for their reputation, The dissenting opinion was written and drafted by Justice Elena Kagan and joined by Justices Sonia Sotomayor and Kay Tang Brown Jackson. It held that the law must be subject to strict scrutiny, with Justice Kagan and her colleagues arguing that the Texas law (H.B. 1181) for age verification constitutes a direct content-based restriction on adults’ constitutionally protected freedom of expression, thereby requiring it to be subject to the highest standard of judicial scrutiny in order to protect fundamental rights. Consequently, the dissenting opinion affirmed that if there is a less restrictive alternative (such as user-side content filtering) that could protect children to the same extent, the state must adopt it rather than unnecessarily burdening adult expression .

  

3. The Organisational Structure of the European Union: Market Integration and the Country of Origin Principle

   Unlike the dualistic framework based on the principle of separation between freedom of expression and the state’s freedom in the US Supreme Court’s case law, the European Union’s approach is closely intertwined with the rules of the internal market.

  Under Directive 2000/31/EC (the E-Commerce Directive), the ‘country of origin’ principle ensures that information society services are regulated exclusively by the Member State in which the provider is established, thereby preventing the targeted Member States from imposing additional regulatory burdens.

    In its landmark judgment delivered by the Grand Chamber on 16 June 2026, in the case of WebGroup Czech Republic and Others (joined cases C-188/24 and C-190/24), the Court of Justice of the European Union clarified the limits of Member States’ authority to regulate the protection of minors in the digital sphere.

    The Court of Justice of the European Union held that Articles 2(h) and 3 of Directive 2000/31/EC preclude any Member State from imposing a general and abstract obligation under criminal law to prevent minors from accessing pornographic content from service providers established in other Member States.

     These sweeping criminal obligations undermine the country-of-origin principle by going beyond the procedural and substantive safeguards set out in the Directive.

   These sweeping criminal obligations undermine the country-of-origin principle by going beyond the procedural and substantive safeguards set out in the Directive.

  However, the Court of Justice of the European Union has ruled that, provided there is strict compliance with Article 3(4) of Directive 2000/31/EC, Member States are not precluded from adopting measures requiring specific service providers to establish age-verification systems, provided that those providers have not implemented ,appropriate preventive measures under Article 28b of the Audiovisual Media Services Directive .

     These individual exceptions must be interpreted in the light of Article 1 (human dignity) and Article 24 (rights of the child) of the Charter of Fundamental Rights of the European Union .

   In doing so, the Court of Justice of the European Union established a regulatory framework: general, unilateral restrictions on targeted countries are prohibited, but age verification orders directed at specific platforms may be issued provided that the requirements for procedural consultation and notification are met.

  

4. Transposition of laws and litigation between Member States: France and Italy

   The practical contradiction between protection policies in the target countries and the European Union’s Internal Market legislation is clearly illustrated by recent administrative proceedings in Italy and France.

 4.1 The French Council of State (Conseil d’État)

   France has transposed the requirements for the protection of minors through amendments to Article 10 of Law No. 2004-575 on strengthening confidence in the digital economy, empowering the French national regulatory authority (Arcom) to impose age verification standards.

    In the case of Webgroup Czech Republic and NKL Associates (10 June 2025), the Council of State considered a priority constitutional question (QPC) challenging Article 10-2 of this Act.

   The applicants argued that the Act violates the principle of the personal nature of penalties because it penalises publishers for failures in the age verification system caused by third-party ‘trusted identity’ providers who operate the ‘double anonymisation’ protocol .

   For its part, the Council of State refused to refer the request for approval of age verification to the Constitutional Council, considering that the obligation to ensure age verification in accordance with the law remains a personal responsibility incumbent upon platform operators, and that the exclusion of third-party service providers from the direct scope of Arcom’s enforcement does not raise a fundamental constitutional issue.

    Shortly afterwards, in the case of Hami Media Ltd (xHamster) v Minister of Culture (15 July 2025), the Council of State quashed a court order that had suspended the ministerial decree

subjecting the xHamster website (hosted in Cyprus) to French age verification legislation.

   The Cypriot provider claimed that French law would cause severe economic losses as a result of user migration and a breach of the privacy rights of adult users.

    Under Article L. 521-1 of the Code of Administrative Justice, the suspension of a licence requires proof of an ‘emergency situation’ that outweighs the public interest. The Council of State held that the commercial and privacy-related objections did not satisfy this condition when weighed against the overriding public interest in protecting children from explicit pornographic material .

  

  4.2 The Italian Regional Administrative Court (TAR Lazio)

  In Italy, the Caivano Decree (Article 13-bis of Legislative Decree 123/2023) a general obligation for age verification on pornography platforms operating in Italy, delegating the technical rules to the Italian Communications Authority (AGCOM) .

    The Italian Communications Authority (AGCOM) issued Circular No. 96/25/CONS and subsequent lists of platforms subject to the obligation, thereby extending the age verification requirements to include EU service providers based abroad, including Aylo Freesites Ltd (registered in Cyprus) .

   As a result of this  Aylo challenged the proceedings on several grounds, including breaches of the data minimisation principle set out in the General Data Protection Regulation (GDPR) and the country of origin rule.

   The Lazio Administrative Court of Appeal dismissed the complaints relating to the General Data Protection Regulation and the substantive complaints, concluding that the Communications and Information Technology Authority’s ‘technologically neutral’ standards, adopted following consultation with the Data Protection Authority, respect the principle of data minimisation by prohibiting the retention of identity documents.

   However, the court annulled the automatic extension of the requirements to foreign platforms established in the European Union, as the Italian Communications Authority (AGCOM) had completely disregarded the mandatory procedural requirements laid down in Article 3(4)(b) of Directive 2000/31/EC .

   Under this rule, before any Member State can restrict an information society service from another Member State, it must first formally request the home Member State (Cyprus) to take precautionary measures and notify the European Commission. 

  As the Italian Communications Authority (AGCOM) had not followed this procedure, the Italian court partially annulled the measure, emphasising that host states may not unilaterally impose restrictions on freedom of expression across the borders of the European Union without due regard for the rule of law.

 

5. The United Kingdom and the dynamics of collaborative platforms:

The Online Safety Act 2023

    The ongoing debate in the United Kingdom highlights how broad legislative definitions of digital technologies can inadvertently threaten non-profit digital infrastructures that serve the public interest.

   Under the UK’s Online Safety Act 2023 (OSA), ‘Category 1’ online services are subject to extensive legal obligations, including a duty to ‘empower users’ under Section 15 to allow users to filter out content from unverified accounts .

     In the case of Wikimedia Foundation and Others v Secretary of State for Science, Innovation and Technology (11 August 2025), the host of the Wikipedia website challenged the threshold regulations set out in the Online Safety Act. The Wikimedia Foundation argued that Wikipedia’s collaborative editing model – in which anonymous and attributed edits are dynamically merged – is functionally incompatible with an identity verification mechanism.

    Isolating edits from unverified users would render the encyclopaedia unusable, which would constitute a breach of Article 10 (freedom of expression) of the European Convention on Human Rights.

  The High Court, presided over by Judge Johnson, dismissed the European Convention on Human Rights claims as premature.

   Applying the strict ‘victim status’ criteria reaffirmed by the European Court of Human Rights in the case of ‘Swiss Anti-Espionage Association v. Switzerland’, the court ruled that, as the Office of Communications (Ofcom) had not finalised the Category 1 listing or classification of Wikipedia, the applicants had failed to establish a ‘risk of a future breach’ with sufficient concreteness.

     As regards the substance of the challenges relating to the interpretation and rationality of the law, the court upheld the Secretary of State’s regulations, ruling that the Secretary of State had acted rationally in relying on high-quality research carried out by Ofcom, and that the legislature was entitled to set objective and broad criteria rather than ad hoc decisions.

 

6. Comparative Analysis and Judicial Interpretation

    Comparative analysis and judicial interpretation reveal differing legal classifications of the same legal issue and the technical burden involved.

   In the United States, age verification is considered an incidental, content-neutral burden and is assessed under moderate judicial constitutional scrutiny, thereby reducing the constitutional obstacles facing the states .

   While in the European Union, whilst the substantive right to the protection of minors is highly valued, the legal system focuses on the country-of-origin rule and the strict two-tier procedural approach under Article 3(4) of the E-Commerce Directive . 

  Administrative cases in France and Italy show that platforms established in EU Member States (such as Cyprus) are protected from abuses by the host state, unless those states fully comply with the requirements for notification and consultation.

   Finally, the UK’s experience serves as a warning that a failure by legislative bodies to narrow the scope of definitions may ensnare non-commercial collaborative platforms serving the public interest, such as Wikipedia, thereby threatening to fragment the open internet under the guise of safety.

 

7. Conclusion

Striking a balance between freedom of expression and child protection in the digital age is not merely a technical challenge, but a matter central to the constitutional framework.

 Recent judicial consensus agrees on the urgent need to protect minors. However, the legal approaches taken vary considerably: the United States applies a lenient standard of scrutiny with regard to ‘incidental’ restrictions, whilst the European Union imposes a strict procedural framework to preserve the single digital market; administrative courts exercise close oversight of regulatory compliance.

  As digital platforms continue to evolve, the challenge remains to implement verification systems that are secure, privacy-preserving and procedurally sound, protecting children without fragmenting the global flow of knowledge or restricting adults’ freedom of expression online.