Mon Nov 25

Banning under-16s from social media may be unconstitutional – and ripe for High Court challenge

Written by: Sarah Joseph, Professor of Human Rights Law, Griffith University

On November 21 2024, the Albanese government unveiled its bill ^[1] to introduce a minimum age of 16 for most social media platforms. The government claims the bill is necessary to protect children from social harm ^[2].

But it might violate the implied freedom of political communication (IFPC) in the Constitution if it is passed. If so, it will be invalid.

Children, politics, and media

Children are not apolitical. Significant “underage” political activists include Greta Thunberg ^[3], the Schools Strike 4 Climate ^[4] movement, and the local Channel 6 news channel ^[5], founded by Leo Puglisi when he was 12.

Some of the most compelling footage of the Amsterdam soccer riots ^[6] involving Maccabi Tel Aviv supporters came from a 13-year-old journalist known as Bender. And children do not need to be activists to be politically engaged: a person’s political consciousness and identity often starts to evolve in childhood.

Social media is a crucial source of political information and communication ^[7] for children. They pay comparatively little attention to legacy media sources such as newspapers or television news. Furthermore, legacy media rarely publishes content from children, unlike social media. The interactivity of the latter allows for conversation, debate and galvanisation that is simply not replicated in the former.

What is the implied freedom of political communication?

The IFPC applies where a legal “burden” is placed on political communication, which is defined as communications on matters that might affect a person’s federal vote, their opinion of the federal government, and constitutional referendums. That definition from Lange v ABC ^[8] (1997) has since been interpreted to encompass communication about virtually any topic that can be viewed as political.

A “burden” arises where the “flow” of political communication is disrupted, which includes a legal disincentive to communicate openly.

In the first Unions NSW case (2013)^[9], restrictions on political donations from non-voters, namely corporations and trade unions, were found to breach the IFPC ^[10]. Restrictions on political donations and expenditure would reduce the political information available to voters and others.

The proposed ban would disrupt the flow of political communication to and from children. Unlike corporations and trade unions, children are future voters. Their later political choices are often influenced by views developed while they are children. Furthermore, the minimum age requirement will deprive us all of children’s political voices on social media.

The IFPC is not absolute. Once a burden on political communication is established, the High Court will then apply a test of proportionality to establish whether the law is nevertheless constitutional. Almost all IFPC cases have turned on this issue of proportionality.

So the government would first have to establish whether the impugned law has a purpose that is compatible with Australia’s system of representative government. The purpose of protecting children would satisfy this step.

There is then a three-step test to establish proportionality. First, is the law suitable for achieving its purpose? Laws fail this test if they lack a rational connection to the purpose. Here, a social media minimum age might be suitable if there is good evidence that social media harms children.

However, we do not yet know how the minimum age requirement will be practically implemented, in particular how social media platforms will verify the age of users. The ban will not be “suitable” if it is unworkable or easy to thwart.

Furthermore, there are views ^[11] that a ban could harm children and breach their human rights ^[12]. For example, social media might give some children access to online communities that alleviate feelings of isolation and alienation. If a ban significantly harms children, it is not a suitable or rational way to protect them.

Second, is the ban is necessary for achieving the purpose? Or are there other ways of achieving the purpose that might impose a lesser burden on political communication?

Notably, a parliamentary inquiry ^[13], which tabled its report on the impact of social media on Australian society on November 17, did not recommend a ban. Instead, it favoured the imposition of a duty of care ^[14] for online platforms to take steps to prevent harm to users. Parliament’s own investigation concluded that less drastic means might suffice to protect children, which indicates the minimum age requirement might fail the test of necessity.

Third, the extent of the impact on political communication is weighed against the importance of the purpose of reducing harm to children. The potential impact on the flow of political communication is massive, given a huge age group will be excluded from using most social media, so that side of the equation should carry considerable weight in any “balancing” exercise.

The bill, if passed, is arguably vulnerable to failing all three steps of the proportionality analysis. It only needs to fail one to be invalid.

A bill that is ripe for constitutional challenge

The IFPC has been one of the most litigated aspects of the Constitution in the past three decades. The vast majority of impugned laws have survived challenge because they have been found to pass the test of proportionality.

Yet this bill seeks to cut a giant swathe of political communication out of existence in Australia. It could feasibly be a rare example of a law that disrupts political communication to such an extent that it is invalid. Social media companies will surely mount a constitutional challenge to find out.