Constitutional challenge to social media ban is on the cards, and teen activists could be the key

A constitutional fight is brewing over Australia's world-first social media ban, according to top legal scholars.

YouTube emerged as the most likely source of a challenge to the ban in July, when parent company Google first raised the prospect.

But experts in constitutional and media law told the ABC that doubts about the ban's constitutional validity extended well beyond the board rooms of the companies that would stand to gain from a victory.

They argue the policy could ultimately be overturned in the High Court because of its impact on the implied right to freedom of political communication, and believe that young climate activists such as 16-year-old Ivy Sheng showcase that risk.

The year 10 student uses Instagram to promote her podcast about environmental justice, as well as sharing her political views with a wide network, including both adults and younger students.

She credits much of her "political education" to social media.

"There wasn't really one specific moment where I suddenly switched on [politically], but I was about 12," she said.

Ivy will scrape past the new social media age limit of 16 when it takes effect on December 10, but many of her peers are preparing to lose access to their accounts once platforms start checking ages, as required by Australian law.

"That's the first group that I'm reaching and so with this ban in place, that's going to be a group that we're losing," she said.

Ivy said social media had become the main place where young people developed their political views, and represented their best opportunity to be heard by people who were old enough to vote.

"Having young people step up and say, like, hey, this is going to impact my future — I think that's probably the most important thing that's going to bring more older people into the [climate] movement," she said.

"If people aren't able to access … social media, they won't be thinking about this when they go into their teens and when they [reach] voting age.

"And that's just not something that is beneficial for us, I think, as a society."

Murmurs about a constitutional challenge began a week before the bill had even been passed, when top constitutional scholar Anne Twomey, from the University of Sydney, raised a similar argument in November 2024 on her YouTube channel.

"This law [is not] going to get kids off their devices and out into the back garden," Professor Twomey said in a subsequent video posted two months ago.

"Nor is it going to do much to protect them from harm."

On the other hand, Professor Twomey argued the new law would likely "burden" their political communication.

"A young person could not make comments on videos on YouTube, indicate likes or dislikes for videos, or upload their own videos.

"This is likely to be where any burden lies because it would inhibit the person from engaging in political debate," she said.

The Human Rights Law Centre (HRLC) also raised the prospect of a constitutional challenge in its submission to an inquiry into the bill, right before it was passed.

"In the modern era, social media platforms are one of the primary tools for political communication," the submission stated.

"It is actually a legitimate objective of government to keep children, and indeed all people, safe online," said David Mejia-Canales, a senior lawyer at HRLC.

"But the legislation, as it is right now, is a really poor solution to a genuine problem."

How a High Court challenge may play out

A constitutional fight over the teen social media ban would not be an easy case to win, experts said.

That is in part because the implied right to political communication in Australia's constitution is far weaker than its more famous American cousin, the First Amendment, also known as the right to free speech.

"A lot of Australians might think that we have something similar to a First Amendment," University of New South Wales associate professor Daniel Joyce said.

"But we don't have a bill of rights in our constitution.

"That's something that's been lamented by a lot of people."

In order to succeed, a challenge on that basis will need to pass three key tests, according to Mr Mejia-Canales, starting with whether or not the law does in fact burden political communication.

"I would argue that it really clearly does," he said.

"It is a blanket ban on people under 16 from using social media — it actually just removes their ability to communicate about political matters across the board."

The second test is whether the law has a legitimate goal, which in this case is to keep young people safe from online harms.

"Which the Commonwealth has identified as including excessive screen time, social isolation, sleep interference, poor mental and physical health, and low life satisfaction," Professor Twomey said.

"While a court would most likely accept that these are legitimate objects, it's much harder to tie them to what the law actually does."

In layman's terms, the third test is whether the law is proportionate to its purpose, and is seen as the most likely point of failure.

"That is, protecting young people from those harms in a way that has the least impact upon freedom of political communication," Professor Twomey said.

"This is where the trouble lies because there is such a disconnect between what the law is claimed to do and what it actually does."

Dr Joyce argued there were alternative approaches, such as the government's own proposal for a "digital duty of care", which would protect young people without blocking their access to online spaces.

"We don't know if the government has considered other, less intrusive ways of achieving the same outcome," Mr Mejia-Canales said.

Why we haven't seen a case in court yet?

While experts agree there is a legitimate case to be heard about the ban's validity, there are many reasons why no such case has materialised.

"Having a constitutional case, particularly before the High Court, is expensive, time consuming … and incredibly stressful," Mr Mejia-Canales said.

"Particularly for any young people who might be a party to this case, and this is why I think we have not seen that challenge yet."

There were also major administrative hurdles to consider, Dr Joyce said.

"It's quite a big endeavour," he said.

"In order to bring a constitutional case, you need to notify … all the attorneys-general in the states and territories and they might intervene."

The HRLC is considering a challenge of its own, but has not yet reached a point where it can proceed.

"At the moment, we're just working with others and taking instructions and, and speaking with [impacted] communities," Mr Mejia-Canales said.

Despite its threats, Google is also yet to file a challenge and has not responded to media inquiries on the subject since July.

Mr Mejia-Canales said a challenge would become significantly more likely to emerge "once all the moving parts of this legislation" were actually in place.

"It's still a huge moving feast, which is why I'm not surprised that we haven't seen a challenge being mounted just yet," he said.

"But I wouldn't be surprised if one is already in the pipeline."

YouTube may challenge its inclusion in the ban

Documents recently released under Freedom of Information laws reveal YouTube may yet try other legal avenues.

In its letter to Ms Wells in July, the platform repeated its claim that YouTube should be considered a video streaming platform, rather than social media, signalling it may challenge its inclusion in the ban on definitional grounds.

The third legal option YouTube is considering is a challenge on the grounds of procedural fairness, arguing the government promised one thing, and delivered another, without a good enough reason.

"Given the legislation was passed on the express understanding that YouTube would be excluded, there is real doubt as to whether the removal of that exclusion is an appropriate exercise of the minister's power," the letter said.

Staff from the Office of the eSafety Commissioner revealed in Senate estimates this week that Google and the regulator were still at 10 paces when it came to YouTube's inclusion, and neither was backing down.

"At this stage, Google and YouTube have conveyed to us that they don't consider that they're covered by the ban. We have a different view. We've advised them of that," eSafety head of enforcement Heidi Snell said on Wednesday.

She told the hearing Google was yet to say whether it would comply with the ban come December 10.

"That's probably a matter to wait and see closer to the time," Ms Snell said.

"If they choose to not comply then we will consider what next steps might be appropriate in terms of enforcing the legislation."

In developing the bill, the government did assess the impact on human rights, and determined the benefits would outweigh the negative impacts.

"Our world-leading social media laws are about protecting children from online harm, and giving them three more years to develop real-world connections and online resilience," the minister's office said in a statement.