Legal fights are brewing over which online social platforms will have to ban under-16s

WhatsApp, Roblox, Reddit and Discord are among an expanded list of platforms which may be covered by the teen social media ban, the ABC can reveal.

The federal government had previously said Facebook, Instagram, Snapchat, TikTok, Twitter/X, and YouTube would be covered by the law, adding that unspecified "others" would likely join them in having to ban under-16s from holding accounts.

But a longer list is now starting to come into focus, with the eSafety Commissioner writing to 16 companies so far, advising them the teen social media ban might apply to their platforms.

The list includes all the well-known candidates, but also some unexpected names.

They've all been asked to use eSafety's "self-assessment" tool to help determine if their service falls under the new laws.

If companies believe their platform should be exempt from the ban when it comes into effect in December, they have been told to make their case in writing and provide evidence as to why.

"There are some [cases] that are pretty clear, [but] we still had to give them the due diligence process," eSafety Commissioner Julie Inman Grant said.

"We need to hear them all out."

The companies eSafety has contacted so far include:

• Meta (concerning Facebook, Instagram, and WhatsApp)
• Snapchat
• TikTok
• YouTube
• X (formerly known as Twitter)
• Roblox (a game-creation platform with roughly 380 million users globally)
• Pinterest (an image sharing and image search platform)
• Discord (a social chat platform originally designed for gamers, which has since gained popularity with the wider community and especially Gen Z)
• Lego Play (a Lego-branded platform which includes a range of games and creative tools for children)
• Reddit (a popular message board service)
• Kick (an Australian-owned video streaming platform)
• GitHub (a cloud-based platform for sharing software code)
• HubApp (a platform designed to "plan and organise every get-together, from drinks to a reunion")
• Match (a company operating more than 45 dating apps and websites globally, including Tinder, Hinge and OkCupid)
• Steam (a store front and digital distribution service for PC games)
• Twitch (an Amazon-owned platform which offers live streaming and on demand video, predominantly to gamers)

eSafety described it as an "initial" list, and not all the platforms included on it are certain to be covered by the ban, with the Commissioner continuing to consult with those she considered "borderline".

"We're waiting to get back all of those [self-assessments] and then we're doing our own assessments," she said.

The list may also grow, with eSafety having conducted background research on "about 100 different platforms", according to Ms Inman Grant.

Whichever platforms make the cut, she has indicated she will prioritise her enforcement efforts on those with the largest under-16 user base, and the most demonstrated harms.

"We're a very small regulator, so we will have to triage," Ms Inman Grant said.

The ABC contacted more than a dozen platforms about the decision making process as to who was "in" or "out" of the ban, and several said they found aspects of it confusing.

Some said they were unsure if or when they would be informed of the outcome.

A spokesperson for the eSafety Commissioner said companies would be notified "in due course" if they were expected to comply.

eSafety also said it would update the Australian public on its views as to which platforms should be covered, before the ban came into force on December 10.

eSafety braces for legal battles from 'shape-shifting' platforms

Earlier this month, the eSafety Commissioner flagged she was bracing for legal challenges from platforms seeking to avoid the ban because they don't believe they fit the definition.

"There may be differences of opinion," she told reporters.

"A couple [of platforms] have said, 'yeah, we do think we're an age-restricted service', but most of them are saying they are not.

A number of platforms on the expanded list, such as Roblox and Whatsapp, were widely expected to be exempt from the ban initially, because of explicit carve-outs for gaming and messaging services.

Other platforms given carve-outs include those which have the "sole or primary purpose" of supporting educational services, healthcare, or professional networking.

But the definition for which platforms are included may be more complicated than it first seemed — social media-style services with competing primary purposes may qualify even if they appear on the surface to be exempt.

When contacted by ABC News, a spokesperson for Roblox said it was not expecting to be covered by the ban.

"Roblox is and always has been an immersive gaming platform, not a social media platform," the company said in a statement.

"We completed the self-assessment process and communicated to eSafety that our position remains that we are an exempted online gaming platform."

"All I would say is there has been a lot of creative shape-shifting going on," Ms Inman Grant added.

The question of which platforms will have to comply with the ban is further muddied by the fact the eSafety Commissioner does not have the power to make a binding declaration on the matter.

"There really is a question about whether or not the legislation gives me the power to designate which companies are in and which are out," Ms Inman Grant said.

A subsequent statement from eSafety said the Commissioner does not have that power.

The resulting ambiguity sets the stage for one or more legal tests which could be decided by the Federal Court, once the ban comes into effect.

"Where a service disagrees with eSafety's use of powers under the Online Safety Act, they have the usual challenge and appeal rights," the regulator said in a statement.

So far, none of the platforms have publicly said they will challenge the ban on definitional grounds.