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A constitutional challenge is pending against the government’s under-16 social media account ban. The case argues that the law contravenes the implied freedom of political communication. It is likely to fail.
Two 15-year-olds, Noah Jones and Macy Neyland, backed by the Digital Freedom Project advocacy group will argue that the law is unconstitutional because it impermissibly burdens the implied freedom of political communication.
A law that has the effect of reducing the overall volume of political communication in Australia will be invalid unless it is proportionate to a legitimate purpose. This rule comes from the Australian constitution’s requirement that parliamentarians be “chosen” by the people and the need for freedom to communicate about political matters for that choice to be meaningful.
The social media account ban only slightly reduces the overall volume of political communication in Australia: 13, 14 and 15-year-olds were not engaging in much political communication before the ban on having social media accounts. Social media platforms have always said in their terms of service that under-13s cannot have accounts. And the law does not ban teenagers from using the internet or having online group chats, like some overreactions seem to suggest.
The case will be heard by the high court in 2026.
The government will argue that the social media account ban is a practical and proportionate means of pursuing the legitimate purpose of protecting kids’ health and wellbeing; just like laws restricting teenagers’ access to some movies and video games that sometimes have a bit of political content.
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As a health protection measure and in other ways, Australia’s ban on social media accounts for under-16s has a lot in common with Australia’s laws on plain packaging for tobacco products. Both laws are world leading. Many other countries have copied Australia’s tobacco plain packaging laws. And it looks like the same will happen with the social media account ban. Malaysia’s equivalent law comes into effect next year and the EU is talking about a similar law.
Both also involve large corporations downplaying the potential harm their products cause. The Wall Street Journal revealed in 2021 that Facebook’s “own in-depth research shows a significant teen mental-health issue that Facebook plays down in public”. Social media giants like Meta and TikTok are currently facing lawsuits in the US alleging that their social media platforms are addictive and harmful to children.
One example from the US state of Georgia is the DeKalb County School District’s lawsuit against several social media companies claiming that the platforms have “deliberately design[ed] addictive features to capture and exploit children’s attention”. In another ongoing lawsuit, the Massachusetts state government says that its lawsuit about Meta-owned Facebook and Instagram is “based only on the tools that Meta has developed because its own research shows they encourage addiction to the platform in a variety of ways”.
And just last week Hawaii filed a lawsuit against TikTok owner Bytedance accusing it of having “knowingly designed an addictive platform that harms users, particularly children, while misleading the public about the risks”.
Another similarity with plain packaging laws is that existing regulations and practices were insufficient. Before plain packaging there were rules about mandatory warning labels and some restrictions on advertising. Some cigarettes had nicotine filters. But these measures were insufficient.
Likewise, the existing rules around social media accounts for teens appear insufficient. Those rules include social media platforms’ terms of service not allowing under-13s to have accounts, which came about as a result of an American law. Another insufficient approach is the special teen features like Instagram’s “teen accounts”, which filter out some harmful content.
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When Australia first proposed plain packaging laws, tobacco companies said there was no evidence that it would be an effective policy. And the social media companies have said the same thing about the social media account ban. For example, in its submission to a parliamentary inquiry into the social media account ban legislation, X said there was no evidence the policy would work.
Tobacco giants were even so bold as to appeal to human rights and free speech claims to argue against other countries’ versions of plain packaging laws. Social media giants routinely criticise regulation of their platforms on free speech and human rights grounds.
This week Reddit was also reportedly preparing to launch legal action against the ban. On Tuesday it said it would comply with the ban but said it was “legally erroneous”. The company argued to the eSafety commissioner that its platform was a source of information, not primarily social media. In other words, Reddit seems to be saying that it falls outside the scope of the law.
So where to for the constitutional challenge? Here there is another similarity with plain packaging, which also prompted a constitutional challenge. That challenge argued the laws contravened the constitutional rule against acquisition of property without just terms. It was rejected by the high court because nobody had acquired any of the tobacco companies’ property.
It’s likely that in the social media account case, once again, the government will succeed because the law complies with the constitution. The under-16s ban is a pragmatic first step in trying to reduce the potential harm on young people caused by addictive products, in this case social media. It is not a law undermining the democratic process.
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Luke Beck is professor of constitutional law at Monash University
