High Court to hear challenge to under-16s social media ban

Australia's world-first social media ban for users under 16 will face its first major legal challenge in the High Court today, nearly a year after taking effect.

Online giant Reddit and advocacy group the Digital Freedom Project argue the ban is unconstitutional because it excludes young people from civic engagement.

The policy, which came into effect in December last year, requires social media platforms to take reasonable steps to prevent Australians under 16 from creating or keeping an account.

Since then, nearly 5 million social media accounts have been blocked from the 10 affected platforms: Facebook, Instagram, Threads, Snapchat, X (formerly Twitter), TikTok, YouTube, Kick, Reddit and Twitch.

And there lies the heart of the plaintiffs' legal contest — that the ban places an unreasonable burden on Australia's implied freedom of political communication.

The Digital Freedom Project is also suing the eSafety commissioner.

While Reddit and the Digital Freedom Project's legal bids are separate, they are challenging the law on the same constitutional ground and have been joined by the High Court into a single special case.

In written submissions to the High Court, Reddit and the Digital Freedom Project argued there was a "fundamental disconnect" between the law's intention and its reality.

They said many children under 16 had found ways to dodge age-assurance technologies to keep their accounts or create new ones, and that potentially harmful content was still available even without an account.

The plaintiffs also argued there were "obvious and compelling alternatives" that would have achieved parliament's purpose with a lesser burden.

Reddit, which is also suing the minister for communications, is further seeking a declaration that it is not captured in the legislation as an "age-restricted social media platform".

Its lawyers have argued the law deprives young people of the ability to "speak, interact, organise and reach domestic and global audiences quickly and inexpensively".

"The deprivation is profound where it is inflicted on a group that does not have the avenue of the ballot box."

Commonwealth argues rules consultative, targeted, and changeable

For its part, the government has long maintained the purpose of the ban is to protect children from the risks of harm associated with some social media features.

Lawyers for the Commonwealth will tell the court about the risk of harm created by social media platforms which are motivated by advertising profits to prioritise user engagement and retention.

They argue the rules that accompany the policy are consultative, targeted and will be able to change over time.

The Commonwealth also claims political communication freedoms only apply to "electors" — people who are eligible to vote — and therefore any burden is indirect, modest and justified.

For their challenge to succeed, Reddit and the Digital Freedom Project will need to convince the High Court that the way the law seeks to achieve that goes too far.

Monash University constitutional law professor Luke Beck said the government had a strong case.

"It's very clear that the Commonwealth can regulate social media and online spaces," he said.

"So this case is going to be useful in clarifying the extent to which the government can regulate."

Professor Beck said even if the government lost the case, it may not see the policy abandoned altogether.

"It may just be a technical breach that can be fixed with some tweaks in the legislation,"

he said.

In a statement, the government said it was on the side of Australian parents and kids.

"We will stand firm to protect young Australians from experiencing harm on social media," a government spokesperson said.

"It would be inappropriate to comment further while this matter is before the courts."

Reddit said it shared the government's goal of protecting young people online, "but there are better, more effective ways to achieve it than the social media minimum age legislation". 

"As we challenge this law in court, we'll continue to comply with it and advocate for more effective youth safety measures," said Adam Collins, the company's chief communications officer.

The case has drawn international attention from the British-based Free Speech Union, US-founded internet company trade association NetChoice and US non-profit Electric Frontier Foundation, who have all sought to appear as an amicus curia or "friend of the court".

State and territory attorneys-general have also made submissions in support of the Commonwealth.

Hearings will continue across Tuesday and Wednesday.