The messiness of Australia’s social media ban for those under 16, as part of the Online Safety Act 2021, is becoming more apparent.
eSafety Commissioner Julie Inman Grant announced that from December 10 “age-restricted social media platforms will have to take reasonable steps to prevent Australians under the age of 16 from creating or keeping an account”. This, she declared, is “not a ban”, but “a delay to having accounts”.
Last month, the eSafety office formed the opinion that “Facebook, Instagram, Snapchat, Threads, TikTok, Twitch, X, YouTube, Kick and Reddit are age-restricted platforms”.
Showing a willingness to adapt to, if not outflank, the regulations, curious teenagers are finding other platforms.
This precipitated the eSafety office to make sure that these discovered outlets are also brought within the scope of the ban. Lemon8, owned by TikTok parent company ByteDance, and the photo-sharing app, Yope, have recently piqued the regulator’s interest.
The ban promises to be a perennially futile exercise.
Cyber Safety Solutions founder Susan McLean is on firm ground in dismissing the restrictions as moribund before they even come into effect.
“For every single bad thing that has been caused by a banned social media platform,” she told the Australian Financial Review, “I can provide you with a platform that is not going to be banned where the same thing has happened.”
McLean also points to another crippling problem: the age restricting measures can themselves be circumvented on designated platforms. “I’ve seen people scrunch up their face to look older, do full face and make-up tutorials. There are masks you can buy, making your face a darker colour, which apparently makes it harder to tell your age. God knows what’s true and what’s not.”
Then there are the qualifications and exemptions that make such a regulation increasingly foolish, even before it comes into effect.
The commissioner seems to be of the view that children visiting the country must have different standards of maturity. They will be exempt from the social media ban when visiting the country, able to lord this fact over any friends of similar age they might make locally.
The Digital Freedom Project (DFP) is keen to pursue the measure’s legality in the High Court. It claims the laws are disproportionate and breach the constitutional right of freedom of political communication, a right divined by the High Court in a constitution that lacks any mention of it.
While accepting the principle that children need protection from online harms, the DFP asserts that “a measure is only constitutional if, in substance, it burdens political communication no more than is reasonably necessary to achieve that purpose”.
Two 15-year-olds, Noah Jones and Macy Neyland, are named as plaintiffs in the action. “We’re disappointed,” said Jones, “in a lazy government that blanket bans under-16s rather than investing in programs to help kids be safe on social media”.
Neyland said that “If you personally think that kids shouldn’t be on social media, stay off it yourself, but don’t impose it on me and my peers.”
DFP president John Ruddick, Libertarian MP in the New South Wales Legislative Council, added that the ban shifted the burden of parental responsibility to “unelected bureaucrats” and government “apparatchiks”. This has done little to disabuse the Albanese government of this daft enterprise.
“Despite the fact that we are receiving threats and legal challenges by people with ulterior motives,” communications minister Anika Wells told parliament, “the Albanese Labor government remains steadfastly on the side of parents and not platforms”.
Of interest is whether this implied right extends to those under the age of 16.
The implied right, unlike the free speech protections in the United States, is not personally vested in individuals. This legal misnomer acts, rather, as a fetter on excessive parliamentary interference upon discussions and engagements in political communication.
Former High Court Chief Justice Robert French, when assessing a South Australian law of similar design, opined that the restriction on content remains “neutral” and “not directed at political speech”, even if it might cover it.
The stock approach of judges in Australia is to show reluctance in striking down parliament’s will, however mischievous and foolish, as long as the means of doing so are “reasonable and proportionate” for “a legitimate purpose consistent with Australia’s representative democracy”.
This government, like its predecessors, insists on mandatory infantilisation as a principle of public policy.
In doing so, it has shown a pathological mistrust not only of children’s intellectual fibre, but the capacity of parents to undertake their nurturing tasks in a digital world.
The legislation has left many citizens with the false impression that harms will be redressed in a cogent way, when there is every likelihood that the appetite for social media will remain undiminished. The idea that children might be enlightened in their use of technology will not feature, while their sheltered ignorance will be treasured.
[Binoy Kampmark lectures at RMIT University.]