High Court contest over social media ban tests children’s right to political free speech

The teen social media ban has robbed Australia’s youth of a key form of political communication, leaving them to “shout their views on a street corner”, US-based platform Reddit has argued in the nation’s highest court.

In the first major test of Labor’s signature social media age restrictions, Reddit and advocacy group Digital Freedom Project are seeking to overturn the ban in the High Court in a case heard on Tuesday and Wednesday in Canberra.

Reddit’s counsel, Perry Herzfeld, SC, argued the legislation was “ill thought-out” and did not clearly target the harms the government said it was trying to mitigate.

Herzfeld argued the government’s own eSafety commissioner had not advocated for the teen social media ban, two parliamentary inquiries had not recommended it and the legislation was flawed after it was rushed through parliament.

He said Reddit was one of the most visited sites in the world, and the social media ban infringed young Australians’ implied freedom of political communication by preventing them from posting, commenting or participating in forums where political figures or institutions directly engaged with users.

Communications Minister Anika Wells said outside court that the government was seeking to protect Australians from harm and would defend that goal from “sustained ideological attacks”.

“The question of what we accept from tech platforms who offer us an online world is the most compelling policy question of our time,” she said.

The full court bench interrogated Reddit’s case, suggesting that children were not sufficiently politically engaged for the ban to have a significant effect, and that teens could use other methods such as WhatsApp or email to communicate.

Justice James Edelman, AC, also challenged the assertion that without social media, teens could not engage in political debate. He said young people had influenced political debate for centuries before social media.

Herzfeld argued the ban robbed teens of a much wider audience online. They could not “shout their views on a street corner” or be interviewed by mainstream media and hope to get the same engagement as they had on social media, he said.

He pointed to the School Strike for Climate movement and the 12-year-old founder of 6 News as examples of underage political engagement, and said it was unrealistic to think a person’s political life began only when they turned 16.

A teen representative for the Digital Freedom Project said outside court that under-16s should have their voices heard.

“If the children aren’t collaborating and sharing their own views, then they’re just spectators in their own world,” Noah Jones said.

The group’s president, NSW Libertarian MP John Ruddick, said the prime minister had established a pattern of censorship with the teen social media ban, the proposed digital duty of care and hate speech reforms.

“We’re hoping today that the High Court… begin to reverse this censorship crusade, which has been waged against the Australian people by Mr Albanese,” he said outside court. The High Court is hearing the group’s case at the same time as Reddit because they are making similar arguments about freedom of political communication.

In March, new rules were introduced targeting the features of social media the government deemed addictive or harmful, such as infinite scroll.

Herzfeld said Reddit accepted it had some of the targeted features – introduced after the platforms launched its High Court bid – but that the platform differed from others in four key ways: the common use of pseudonyms meant it was not aimed at fostering connection between friends, it was mostly text-based instead of images, it did not have an endless feed, and there was no time-limited automatic deletion feature.

Herzfeld said of the 4.7 million accounts the government says have been deactivated since the ban was introduced in December last year, almost 44,000 were on Reddit.

He said Reddit would argue against the Commonwealth’s defence that the laws aimed to penalise platforms, not teens, and that the ban was justified to protect against online harms.

The case continues.

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