Commonwealth defends cramping teens’ implied speech rights to curb digital dangers

The teen social media ban has hampered children’s ability to engage in political debate, the Commonwealth has conceded in the nation’s highest court, but argued online dangers are so great that the restriction was worth it to protect them.

The government was on Wednesday defending the world-first ban against US-based platform Reddit and a libertarian advocacy group in a closely watched High Court contest, claiming it burdened teen’s implied constitutional right to freedom of political communication.

The defence argued that the impingement was only minor, and suggested Reddit could skirt the ban by developing a kids-only version of its platform that did not include harmful features.

The court challenge is the first major test of Anthony Albanese’s teen social media ban – the foundational plank of Labor’s digital safety agenda, which has been attacked by the Coalition, the Trump administration and social media giants as an attempt to curb free speech.

NSW Libertarian MP John Ruddick, the president of the Digital Freedom project, which is also a party to the case, said on Tuesday 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.

Commonwealth barristers argued addictive and harmful features of social media posed a slew of risks to teens, including detrimental effects on sleep and attention span, fostering depression and suicidal ideation, intensifying ADHD symptoms and exacerbating eating disorders.

Stephen Lloyd, SC, said protecting against those dangers was worth an “indirect and modest” restriction on teens’ ability to engage in political discussions online.

He said children were particularly vulnerable to psychological manipulation features such as algorithm-recommended content and endless scroll, and Reddit’s suggestions for alternatives to the ban, including prompting users to log off after an hour of screen time, would not protect against harm as effectively.

Teens could still participate in political communication, he said, including through viewing sites without logging in, using messaging and gaming platforms that are not banned, through a parent’s social media account, or on a hypothetical version of Reddit designed for children.

Reddit’s barrister, Perry Herzfeld, SC, said the Commonwealth’s suggestion of creating a children-only Reddit would still prevent teens from engaging with the main platform.

If the social media ban was struck down, platforms could instead create child-friendly accounts – without the features the government has identified as harmful – within Reddit, he said.

Herzfeld said platforms would have to comply with the government’s looming digital duty of care, which could achieve the same goal of protecting children online without hampering political communication.

Reddit had argued on Tuesday that harmful features should be banned instead of accounts, and pointed to problems with age verification, saying that facial-identification technology was imprecise.

Lloyd rejected that argument on behalf of the government on Wednesday, saying Reddit had not provided evidence for how many people were incorrectly being identified as underage.

He also rejected the eSafety commissioner’s early assessment of a potential social media ban as a “blunt” instrument, saying the age restrictions were designed to minimise exposure to harmful features.

Asked whether he accepted that social media was a key communication tool for children, Lloyd said it was unknown whether they were participating in political discourse or were checking what their favourite movie star was doing.

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