YouTube has revealed three legal grounds on which it could challenge its inclusion in Australia's under-16 social media ban, set to take effect in December. The company's concerns were outlined in a letter to Communications Minister Anika Wells, obtained by Guardian Australia under freedom of information laws.
The first ground argues the ban could be an 'impermissible fetter' on the implied constitutional freedom of political communication, preventing under-16s from posting videos or comments on political matters. The second claim is that YouTube is not a social media platform but a video streaming platform, with social features like comments being ancillary to its main purpose.
Thirdly, YouTube contends it was denied procedural fairness, as it was not given a chance to respond before the government reversed its earlier decision to exclude the platform from the ban. The company said the reversal came after legislation was passed on the understanding YouTube would be excluded, raising doubts about the minister's power to change this.
Legal experts suggest the procedural fairness and definitional arguments may be stronger than the political communication claim. Dr Jake Goldenfein of the University of Melbourne noted that the act's definition of social media is ambiguous, while Professor Terry Flew of the University of Sydney said it is unlikely MPs would have voted differently based on YouTube's inclusion.
YouTube also criticised the eSafety commissioner's definition of 'harmful content' as too vague, citing categories such as 'shows or encourages illegal drug taking' and 'extreme real-life violence'. The company has yet to file a legal challenge, with just over two months until the ban commences on 10 December.
