Reddit and libertarian group challenge Australia’s under-16s social media ban in high court

Australia’s world-leading under-16s social media ban will face its first major legal challenge on Tuesday, as Reddit and an advocacy group headed by a libertarian politician seek to overturn the law in the high court.

Nearly 11 months ago, 10 platforms – Snapchat, TikTok, YouTube, Facebook, Instagram, Reddit, Kick, X, Twitch and Threads – were required to deactivate or suspend the accounts of users they determined to be aged under 16 years.

Since then, the prime minister, Anthony Albanese, has said more than 5m accounts across the 10 services have been suspended as part of the ban.

Whether the ban will stay will be the subject of the high court hearings on Tuesday and Wednesday this week as Reddit and the Digital Freedom Project – led by New South Wales state Libertarian MP John Ruddick – seek to overturn the ban.

Australia does not have a guaranteed right to freedom of speech, and the case largely focuses on whether preventing under-16s from holding a social media account impermissibly burdens the implied freedom of political communication in Australian law.

Reddit has argued in its submission to the court that online platforms are a “common source of news and political information” in Australia. The company pointed to its “Ask Me Anything” sessions on the site where users have historically asked questions of politicians of candidates.

Teens, Reddit said, would not be able to make posts on politics, comment or react to political content, or engage with the social media accounts of the youth wings of the major political parties.

The Australian government has argued in its defence that the law serves the legitimate purposes of seeking to reduce the risk of harm for under-16s from social media platforms for the “harmful features” including algorithms, infinite scroll, persistent notifications and likes.

While the Digital Freedom Project adopted many of the same arguments on political communications burden as Reddit in its submission, the group is likely to face an additional hurdle with the government challenging the standing of the group to bring the case to the court.

Digital Freedom Group had initially had two teens – Noah Jones and Macey Nyland – as the original lead plaintiffs for the case as teens affected by the ban. However in July both were withdrawn from the case, leaving it to the advocacy group.

It is understood there was concerns that the teens would face potential legal costs against them in the event of a loss.

Digital Freedom Project has argued in its submission that some of its members are between the ages of 13 and 15, and the teens are likely to be presented as examples in the case, but the federal government has argued that as the plaintiff, Digital Freedom Project does not have standing to bring the case.

The federal government’s submission argues the group has not identified any activity of the group that is impeded by the ban.

Legal experts have been divided on the prospect of success. The constitutional law expert Prof Anne Twomey wrote last year that Reddit could be successful in highlighting the mismatch between the intended purpose of the law and the practical effect – if the restriction is not preventing children from the harms while also restricting their freedom of political communication.

Luke Beck, professor of constitutional law at Monash University, wrote in the Guardian last year the cases were likely to fail, as the social media account ban only slightly reduces the overall volume of political communication in Australia, and 13-, 14- and 15-year-olds were not engaging in much political communication before the ban.

Beck said last week the extra hurdle for Digital Freedom Project to prove standing would also be difficult.

“The government is arguing that DFP is not impacted by the law so therefore can’t challenge it,” he said. “We’ll see what the high court says about advocacy groups having standing to challenge laws: traditionally the courts aren’t too keen.”

Many other countries are considering following Australia’s lead, but there have been concerns teens have been able to easily circumvent the ban. The federal opposition has also raised concerns that the number of accounts suspended may be inflated, while the government has refused to release numbers broken down by platform.

As the legal challengers get their day in court, the eSafety commissioner, Julie Inman Grant, is also using new powers passed by parliament this year to investigate whether TikTok, Snapchat, YouTube, Instagram and Facebook are in compliance with the law, given the number of teens still holding accounts.

The companies could be facing the prospect of fines of up to nearly $100m a breach, if the regulator decides to take the case to the federal court.

The federal parliament is also debating the digital duty of care legislation mandating platforms take actions to prevent users experiencing harm on their platforms. Beck has said the passage of this legislation could present a pyrrhic victory for Reddit if it successfully overturns the ban.

The Australian government has made this argument in its submission in the case, stating the obligations of the digital duty of care bill would “require the same action” as the social media ban legislation.

“Namely, preventing children having accounts or providing children with accounts that do not have any of the [restricted] features.”