Do Young People Have a Right to Political Communication?

Legal challenges to the social media ban expose the fragility of Australia’s rights and freedoms.

Last week, social media platform Reddit filed a High Court challenge against the Australian government’s recently implemented social media ban, arguing it was “unconstitutional”.

It follows an earlier challenge brought by two 15-year-olds, Noah Jones and Macy Neyland, backed by the Digital Freedom Project, a digital rights based advocacy group opposing the ban.

The primary grounds of both challenges is that the ban as it stands infringes on the ‘implied freedom of political communication’ of young people to share and communicate political beliefs.

These challenges argue people as young as 13 have the same rights to political expression as those above, however is this really the case?

Do young people really have a ‘right’ to political communication, or can it be overridden in the name of protecting against online harm?

Background

The social media ban, which entered legal operation on 10th December, requires social media platforms take “reasonable steps” to prevent users under 16 from accessing or having social media accounts.

This ban currently applies to Facebook, Instagram, Snapchat, Threads, TikTok, X, YouTube, Kick and Reddit. However, it is controversially exempted from platforms such as Discord and Roblox.

This means Australians under 16 cannot have accounts on any of these platforms, restricting them from accessing their contents unless the platform has logged-out functionality.

The federal government argues the law’s purpose is to “enhance the online safety and wellbeing of young people”, and ‘protect’ against the harm posed by unfettered access to social media from 13 or younger.

Government reports, including one published by Queensland Chief Health Officer, found “existing studies provide compelling indications of possible negative links between unrestrained social media usage and the cognitive, emotional, and social wellbeing of young people”.

It’s not unusual for governments to regulate what young people can interact and consume, even where political content arises. 

For instance, cinemas are banned from selling tickets to movies with certain age ratings. Video games also contain classifications, regardless of whether they are morally okay or not. Liquor shops are banned from selling alcohol to young people under 18, and pubs must refuse unaccompanied minors, even if a political event is taking place. 

The result of these rules is to restrict the rights of young people in order to support their growth and development, whilst preparing them for the risks associated with these activities.

The Freedom of Political Communication

High Court of Australia | Wikipedia Commons

Australia lacks a ‘Bill of Rights’, meaning we have very few protected rights outside of religion and interstate travel (our Constitution is worried about the Feds and States getting along, not if Karen can rant online). 

Instead Australia has an ‘implied freedom of political communication’ which comes from the Australian Constitution’s requirement for politicians to be “chosen” by the people. 

The High Court has held this ensures people can make informed judgements on who to vote for in elections to be their representative to Parliament.

This is not an individual right, instead a limitation on Parliament’s power to make law – It’s about limiting politicians, not protecting people. Meaning it’s about ensuring any attempt by the government to regulate political speech is done only with the best intentions and does not undermine the democratic process.

To determine whether a law burdens political communication, the Court employs the test used in Lange Case, ‘a law that burdens political communication will be invalid unless the law has a legitimate purpose and that purpose is pursued in a proportionate manner’.

Can it Succeed?

Part 4A of the Online Safety Act 2021 (Cth) requires social media platforms take reasonable steps to prevent children who have not reached the minimum age from having accounts. This is to prevent young people from being exposed to harm online via social media, including issues such as image based abuse.

For this, the Court will likely find the law to be for a legitimate purpose. Remember, one of the fundamental duties of any government is to protect its people from danger, and it is generally accepted under law that young people are held to a higher standard of care.

This restriction is also “content-neutral,” meaning it does not discriminate one particular belief over another, it aims to address harm arising from criminal activities online, not whether Karen criticises someone from a comment section.

However, whether the laws are proportionate could face some legal hurdles.

The ‘social media ban’ isn’t really a ban on young people, but a compliance mechanism to restrict social media companies from offering social media accounts to young people under 16 – in effect, the law burdens tech companies over young people.

A young person can still technically access social media, for instance they can access YouTube’s home screen to watch videos without an account, or even view Reddit forum posts.

So while young people can still technically view ‘harmful’ content, they are only restricted from sharing, reposting, commenting, liking/disliking or performing any other common features associated with post engagement.

Therefore, Reddit and Co may argue the ban unreasonably burdens the capacity of young people to communicate messages online, whilst failing to prevent them from viewing ‘harmful’ content the Act aims to prevent.

Yet, it can be equally argued the purpose of the law is to prevent as mentioned issues such as image based abuse, which generally occur through users with accounts on platforms such as Snapchat, meaning this law would succeed in preventing this form of abuse.

Whether it is appropriate to restrict young people under 16 from sharing political memes in order to prevent the risks of image based abuse, alongside many other online criminal behaviours, is ultimately a question for the Court to decide.

However, as it stands, it can be said young people enjoy a freedom from the government to restrict political communication, unless it's legitimate and proportionate, then in which case, it's perfectly okay to do.