Australia’s social media ban faces high court challenge

Almost one year on from the start of Australia’s landmark social media ban, it is clear that the law has failed to stop most children from accessing the platforms. Meanwhile, teenagers are hoping to overturn the policy through a challenge at the nation’s highest court.

“I’m bringing the High Court case because young Australians have a right to be in the digital town square,” says Noah Jones, a primary witness opposing the ban in the case, which started hearings on 3 November. “This is the world of technology and I’m entitled to see it all and not be shut out.”

Jones was 15 when the ban came into effect, prohibiting under-16s from accessing social media sites, including Instagram, Facebook, Snapchat and TikTok. He was a plaintiff in the case, but withdrew due to the risk of costs being awarded against his family.

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Now, the constitutional challenge is being led by advocacy group the Digital Freedom Project, alongside Reddit, which – like other social media behemoths – fears that Australia’s social media ban will be replicated elsewhere around the world. The primary argument before the court this week has been that the ban limits the freedom of political communication for under-16s.

In spite of this challenge and widespread concerns about implementing and enforcing a social media ban for children, numerous nations, including the UK, Indonesia, Malaysia, Brazil and a number of EU members, say they, too, will follow suit.

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From the moment the policy was announced, many experts warned that it would be unworkable and could have negative outcomes, and that the real target of any policy should be the platforms, their algorithms and what they allow online.

The biggest failure of the policy highlighted by researchers is that most children have been able to keep their profiles. One study by Courtney Barnes at the University of Newcastle in Australia and her colleagues, who surveyed more than 400 under-16s prior to the ban and then again three months after it, found that 85 per cent were still using prohibited platforms.

Such research and similar findings from Australia’s eSafety commissioner forced the prime minister, Anthony Albanese, to announce in June a doubling of the fines for social media companies from AUS$49.5 million to AUS$99 million ($35 million to $69 million) if breaches were identified. He also introduced a raft of new powers for the eSafety commissioner to compel companies to provide information about what they were doing to get kids off their sites.

At that time, Albanese said countries around the world were following Australia’s lead on social media reform, but that social media companies weren’t doing enough to exclude children.

Yet, nearly half a year later, and in spite of widespread evidence that the laws have had little effect on teens’ social media use, not a single fine has so far been issued.

“Some kids hid accounts and devices from parents at first, but when accounts shut down, we all just made a new one or had someone older do the face scan,” says Jones. “Kids just laughed and kept using socials. Most kids I know have more social media accounts than last year because new platforms popped up and we tried them out.”

Iain Corby at the Age Verification Providers Association in London says up to 80 per cent of children have kept their accounts, with half saying they were never challenged and over a third retaining access “thanks to the false ages they originally used to create the account”.

“Australia has been a missed opportunity for those who hoped it would provide evidence on the benefits and drawbacks of age restrictions for social media, because the platforms did not implement the law in good faith,” says Corby.

He says the UK’s communications watchdog, Ofcom, has been much clearer about the requirement for highly effective age assurance when the UK brings in its restrictions next spring, and that ministers are “alive to the need for robust legislation that pre-empts loopholes”. “The social media platforms may think they have muddied the waters and avoided a successful precedent being set by Australia, but it is clear that lessons are also being learned by observers.”

Susan McLean at CyberSafety Solutions, an Australian consultancy, says it is sad that teens around the world can access Instagram teen accounts with inbuilt safety settings, limited content and algorithmic controls, yet Australian children cannot because of the ban. She says this is pushing them to far less safe platforms. “I would never have found primary kids even knowing what Reddit was before the ban, but now it’s mainstream for kids as their vetting is easily bypassed,” says McLean.

Catherine Page Jeffery at the University of Sydney says her children have been able to retain their social media accounts and a “tentative conclusion” can be drawn that not that much has changed for Australian teens. She says there is no point doubling the penalty for social media firm breaches if the government isn’t going to enforce the law. “What does enforcement look like? Are we going to see that? Are we going to see these platforms being taken to court?” Jeffery asks.

Lisa Given at RMIT University in Melbourne says governments around the world have been captivated by the headlines rather than the data. Instead of bans, efforts should instead be on online safety and digital duty of care, she says.

It is impossible to keep children from interacting online and the focus of governments should be on making platforms safe, says Given. “My main message is that this isn’t the solution,” she says. “I think other countries really need to actually look at the data.”

Noah Jones, the young witness in the High Court case, says the arguments made by the government’s lawyers in court this week left him dismayed. “I don’t matter as an Australian when they say I’m not an elector and they do not seem to know the shorthand of how people communicate today,” he says. “I resent when statements are made that I should form a local club to exchange ideas or drop pamphlets – that sounds like my mum’s childhood before the internet.”