Logged out of Democracy

Thankfully, there has been no discernible influx of rebellious youth in my LinkedIn feed, although it may be hard to tell between the AI-slop and engagement-baiting self-promotion. Even so, it is too early to offer a critical assessment of the teen social media ban, other than to say that the implementation happened pretty much as expected. Teens are trying to circumvent the ban, with varying degrees of success, and we saw plenty of political press reassuring anxious parents about the positive, generational change this will have on their children’s lives. 

One interesting development was a second High Court challenge against the law. Reddit is arguing, similar to the first case brought by two Australian teenagers, that the law violates the constitutional implied freedom of political communication. In addition, Reddit claims it has been arbitrarily and erroneously designated a social media platform. While Reddit’s claim that it doesn’t facilitate genuine social connections because of its users' anonymity is questionable, the implied freedom argument is more compelling, as it offers the Court an opportunity to define the constitutional limits of government intervention in online political discourse. 

Australia’s High Court only recognised an implied freedom of political communication in 1992, holding that a Constitution establishing a system of representative government implied a right to discuss political and government matters. When considering the application of the implied freedom, the High Court considers whether the law burdens political communication and, if so, whether it pursues a purpose compatible with representative government through means that are proportionate to achieving it. As part of the investigation into proportionality, the court considers the law’s suitability, necessity and adequacy in balance. 

The freedom is not limited only to those eligible to vote; the fact that the law targets those under 16 is therefore not an immediate barrier. The ban’s potential to block adults due to inaccurate age verification may satisfy the burden requirement regardless. The real contention will likely centre on how the Court characterises the law’s purpose and whether the chosen mechanism is proportionate to achieving it. 

Reddit will likely argue that the law’s purpose is to protect minors from online harms in a more general sense, and that the current mechanism does not genuinely serve this purpose. The ban targets account creation, not access to platforms. Teenagers can still browse Reddit, scroll through feeds, and encounter the same content that concerned legislators in the first place. In fact, Reddit may contend that the ban makes things worse: without an account, minors lose access to content filters, parental controls, and the ability to curate their own experience. 

The Government, potentially anticipating this line of attack, has framed the ban not solely as a content-blocking measure but as a response to the harms specifically associated with the ‘logged-in’ state. On this view, the purpose is to sever the feedback loop between user accounts, personalised algorithms, and the design goals aimed at maximising engagement. The harm is not necessarily the content itself, but the delivery mechanism: the dopamine-driven cycle of notifications and tailored recommendations that accounts enable. 

Both framings describe purposes that are likely compatible with representative government; protecting minors from harm is not, on its face, antithetical to democratic governance. Assuming the Court accepts a legitimate purpose, the proportionality test requires it to consider whether the law is suitable, necessary, and adequate in its balance in pursuing this purpose. 

Suitability asks whether there is a rational connection between the law and its purpose. Here, the Government has a reasonable argument: if the harm flows from account-based features such as personalised algorithms and persistent notifications, then preventing minors from creating accounts is a logical response. No account, no algorithmic curation, no push notifications dragging teenagers back to the platform at 2am. 

But Reddit will likely argue against the approach’s necessity, whether there is an obvious and compelling alternative that is less restrictive. The platform could point to age-appropriate design codes, mandatory parental controls, or algorithmic transparency requirements as measures that address the same harms without prohibiting participation outright. The UK’s Age Appropriate Design Code, for instance, requires platforms to default to high privacy settings and disable features that encourage extended use for child users, without banning them from the platform entirely. 

Finally, there is the question of adequacy in balance, whether the benefit of the law justifies the extent of the burden. Reddit, and social media more generally, are, for better or worse, significant forums for political discourse. Communities and posts dedicated to Australia, Australian politics and policy debates are active and popular across Reddit. Banning teenagers from participating in these discussions is a meaningful burden on the freedom, even if they can still lurk as logged-out observers. 

The Government will argue that the burden is modest: teenagers can still access political content, they just cannot create accounts. The counterargument, of course, is that there is a difference between reading and participating. Representative government depends on the free flow of political communication, and that flow is not unidirectional. If the freedom protects not just the right to receive political information but to contribute to political debate, then a law that silences an entire demographic from online political participation demands serious justification. 

Reddit’s challenge may ultimately fail. The implied freedom is not a general guarantee of free speech, and the High Court has upheld laws burdening political communication where the proportionality analysis is satisfied. The Government’s focus on algorithmic harms rather than content seemingly provides a defensible basis for the legislation.  

Whatever the outcome, the two cases challenging the law will clarify a question that Australian constitutional law has not yet squarely addressed: in an era where social media is the public square, what does it mean to burden the freedom of political communication? 

References:

1. https://theconversation.com/two-teens-have-launched-a-high-court-challenge-to-the-under-16s-social-media-ban-will-it-make-a-difference-270688
2. https://theconversation.com/reddit-says-its-not-a-social-media-platform-australias-high-court-is-unlikely-to-agree-271938