Legal warning about smartphones and social media in South Africa

South African children over the age of seven who have access to a smartphone and social media are at risk of being sued if they post defamatory remarks online and, if they’re over the age of 12, arrested.

Social media law expert Emma Sadleir spoke to Cape Talk and unpacked the legal dangers of letting children use smartphones from a young age.

This comes after the SFC Working Group invited parents to sign the South African Digital Parent Pact, which aims to delay children’s smartphone use.

“The idea is to try and get parents together and say: We’re going to sign a pact,” said Sadleir.

“The brain development is just not there yet for these kids to be making good decisions. Even though the law applies to them, their frontal lobe isn’t at the place where they can make decisions in the heat of the moment.”

“If we think that we sometimes do things that we regret on our phones, it’s nothing compared to what I’m seeing in the 10 to 14 age, where I’m seeing the worst content you could probably imagine,” she added.

Children in such situations could also face legal action, with Sadleir highlighting that kids in the country could face legal action, with parental assistance, from age seven.

“Everybody’s got this idea that everything happens at 18. That’s not the case. In South Africa, from seven years old, children have civil capacity, which means that they can sue and be sued. Obviously, with the assistance of an adult,” she said.

“From 12 years old, children can be arrested. Under the age of 12, no criminal capacity, but over the age of 12, and definitely from 14, kids do have capacity and can be arrested.”

Asked for her thoughts on banning children from using smartphones, Sadleir said she believes they should be banned up until at least primary school.

“But if I were the boss of the world, no child under 13 would have a phone,” she added.

However, she acknowledged that peer pressure is an issue, with kids getting bullied and ostracised if they don’t have a smartphone and can’t participate in WhatsApp groups and other social media.

Be in Touch founder Kate Farina called for phone-free schools and no social media before the age of 16 in June 2024. She also said children should be banned from using smartphones until they reach high school age.

Citing Jonathan Haidt’s The Anxious Generation: How the Great Rewiring of Childhood is Causing an Epidemic of Mental Illness, she said parents and schools should do more to protect children online.

She added that too much is being done to shelter children in the “offline world”, but many are given free rein when it comes to online activities.

“We’re experiencing a massive global shift in the thinking around the kind of people our children are engaging with online,” said Farina.

She explained that overprotecting children in the real world denies them critical skills and experiences.

“That goes to the teen years, where we’ve got this massive dopamine drop, which is designed to help humans learn basic life skills through going out and taking risks, which then gives them that dopamine hit,” said Farina.

“What we’ve seen is a short circuit happening, where it’s far easier to reach into your pocket and grab your device to get that hit.”

Many modern teenagers don’t gain the critical skills they would if they went out and took risks for the same dopamine hit.

Farina said many parents don’t know what’s happening online and don’t put the proper safety settings and parental controls on devices.

She highlighted several remedies outlined in Haidt’s book, including not allowing children to use smartphones before they reach high school age, no social media before 16, and making schools phone-free zones.