On 3 and 4 November the Full Court of the High Court of Australia heard arguments in the matters of The Digital Freedom Project Incorporated & Ors v The Commonwealth of Australia & Ors and Reddit, Inc. v Commonwealth of Australia & Anor.
Digital Freedom describes itself as a group of Australians concerned about increasing government intervention in the digital space. You probably know Reddit, the American social media website known for having groups who discuss any and every topic under the sun, known as ‘subreddits’.
Late last year, Digital Freedom and Reddit challenged the controversial law banning social media for children under the age of 16 in Australia. They, along with the Federal and State Governments are now eagerly awaiting judgment, which will probably not be handed down until early next year.
What do Digital Freedom and Reddit want?
They want the law struck down because, they say, it infringes on the implied freedom of political communication.
The implied freedom is a constitutional doctrine unique to Australia and conceived in the early 1990s. For some time, it was a divisive area for the High Court of Australia. In recent years though the High Court has reframed, clarified, and (mostly) settled the law on the implied freedom.
The implied freedom emerged from the High Court’s judgments in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, and Australian Capital Television v Commonwealth (1992) 177 CLR 106. The Court held that individuals must be able to discuss political issues freely for a representative and responsible government (democracy) to function.
The freedom restricts the Government’s law-making power. If the High Court finds that a law infringes the implied freedom, it can strike that law down.
What do Digital Freedom and Reddit need to do to succeed?
Three questions are asked to determine whether a law impermissibly burdens the implied freedom and should thus be struck down:
- Does the law burden the implied freedom of political communication?
- If yes, does the law have a legitimate purpose?
- If yes, is the law reasonably appropriate and adapted to advance that legitimate purpose?
Everyone in the present cases accepts the under 16s social media ban burdens political communication. It restricts children’s political participation.
It is similarly accepted that the ban has a legitimate purpose, namely, to reduce the risk of harm to age-restricted users from certain kinds of social media platforms.
The question therefore turns to whether the law reasonably appropriate and adapted to advance that legitimate purpose. This essentially asks whether the way the law tries to achieve its purpose (banning social media for children under 16) is reasonable.
Reddit and Digital Freedom’s arguments
Reddit’s central argument is that the ban does not fit the harms it targets. Most content, and many of the design features said to be harmful, such as endless feeds and recommendations, remain available on Reddit and YouTube without an account. Messaging and gaming services carry similar risks but are excluded. Removing accounts also strips away safety settings and parental controls that only account holders can use.
It also says the ban is ineffective in any event: age-checking technology is unreliable near the age of 16, less accurate for some groups and easy to get around.
It argues Parliament had less restrictive options, such as limiting the ban to platforms that only work with an account, regulating harmful content, controlling addictive design features (as some US states have done), or requiring parental controls.
Digital Freedom argues the ban is a blunt instrument. Similar to Reddit, it proposes alternatives that were available before the law passed, including parental consent for 14 and 15-year-olds, a ‘digital duty of care’ on platforms (see our article here on that proposed legislation), compensation for harmed children, and switching off harmful features. It says the lost participation, together with the privacy and compliance burdens of age-checking, outweighs benefits that remain uncertain.
The Commonwealth’s arguments
The Commonwealth argues the ban is a justified response to credible risks of serious harm to children. It says the law restricts political communication only indirectly and modestly. The law places obligations on platforms rather than young people and applies regardless of what users say. It also leaves under-16s free to view public content without an account and to use other channels.
It contends the ban carefully targets platforms with account-based features such as personalised recommendations, endless feeds and ‘likes’. The agreed evidence links these features to addiction, sleep disruption, anxiety, depression and other harms that especially affect children. Parliament, it says, need not wait for scientific certainty before acting to protect children. It points to the removal or restriction of about 4.7 million accounts as evidence the ban is working, and argues that none of the proposed alternatives, such as parental controls, content rules or a duty of care, would protect children as effectively. It also notes that platforms can already offer under-16s a stripped-back version without the targeted features, which would fall outside the ban.
As arguments have closed, it is now in the hands of the High Court to determine the future of the under 16 social media ban. Along with free-speech activists, constitutional law enthusiasts, and children wanting their social media accounts back, we are excited to read the judgment.
Jake McKinley notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Jake McKinley are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.
Article Written by James Cutrone, Law Graduate
