Rosalind Dixon: New South Wales University law professor on Reddit challenging Australian social media ban

Reddit's launched a High Court challenge to Australia's pioneering social media ban for under-16s. 

The country's new law, which sets a mandatory age limit of 16 or older for accounts on certain platforms, including Reddit, took effect on Wednesday. 

Reddit's case argues the policy has serious implications for privacy and political rights.

New South Wales University Law Professor Rosalind Dixon says Reddit isn't a bad plaintiff. 

"If they can show that young people's political communication is burdened or that adults learning from young people and hearing from them is burdened, they're up and running." 

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Episode Transcript

Speaker 1 (00:06):
You're listening to the Sunday Session podcast with Francesca Rudkin
from News Talks.

Speaker 2 (00:11):
Edb Reddit has launched a High Court challenge to Australia's
world leading social media ban for under sixteens. The platform
is arguing the band raises issues around privacy and political expression.
It's also questioning whether it should be included in the
age restriction. So will the social media band survive a
High Court challenge to discuss I'm joined by Australian constitutional

(00:32):
law expert Professor Rosalind Dixon. Good morning, Rosalind, good morning.
Is there a strong case here against the span?

Speaker 3 (00:41):
Well, I think it's a very arguable case, but strong
I think, you know, it is a really hard thing
to predict because we really don't know a lot about
how the High Court thinks about these issues. You'd have
the same in New Zealand. You've got a clear borer
right to free expression. But there are strong countervailing concerns
that are you know, resonating globally. It's while you're thinking

(01:01):
about it on the radio this morning. So I think
it's hard to predict the outcome. I think we can
and say it's going to be a very vigorous and
interesting contest in the High Court.

Speaker 2 (01:10):
Rosalind, can you talk me through the issues read it
has raised? Here they're challenging on the grounds that it
infringes the implied freedom of political communication. Does the platform
have a point there?

Speaker 3 (01:22):
They absolutely do. So, you know, the Australian constitution's a
bit different from New Zealand and that we have an
entrenched constitution where yours is a more multi dimensional, conventional
constitution with an express free speech right. We don't have that,
but the court says we have an implied right to
freedom of political communication. So the first thing they've got
to show is that the communication is actually political. You know,

(01:45):
TikTok makeup videos aren't political, and none of those are
going to be protected in Australia where they might be
in New Zealand. So Reddit's actually not a bad planet
if here, because some of what goes on and Reddit
it's a bit more political than what goes on on Instagram.
So if they can show that young people's political communication
is burdened, or that adults learning from young people and

(02:05):
hearing from them is burdened, you know, they're up and running.
And then what needs to be decided is whether the
restrictions are reasonably necessary or proportionate to a legitimate and
important government purpose. And I think what's really interesting is
there's lots of purposes that government could rely on, but
we're not entirely sure what they will run and how
much evidence they're going to have to support that.

Speaker 2 (02:26):
Okay, And what about the privacy issue. This is to
do with the fact that on Ridded a lot of
people don't use their actual names and have to share
a lot of information about themselves.

Speaker 3 (02:35):
In New Zealand, that would be a good argument. In Australia,
privacy rights are much more limited. We don't have a
sort of constitutional style privacy right. We've got statutory rights
and there's a big debate about the common law. I
think that's going to be a less compelling argument. I
think the implied freedom ones the potential winner. If there's
a winner there.

Speaker 2 (02:54):
A lot of the arguments against the ban are around
the negative impact on human rights. Does this ban go
against human rights?

Speaker 3 (03:02):
Well, in a lot of hard cases, human rights are
on both sides. So I think back to it, you know,
trying to restrict freedom of expression, freedom of movement and
protest was all about protecting the right to health. So
it was a legitimate hard case of balancing freedom of
movement against the right to health. Here you're trying to
protect kids' mental health. You're trying to protect a great

(03:24):
deal of other forms of you know, public interests that
have human rights resonances against the right to freedom of expression.
So it's a true human rights hard case of balancing.
The one thing I think will be really important is
whether this actually works in any way. You know, I've
got teenagers, and I know that there's a lot of

(03:44):
sense in which these laws are designed by people like
us who don't understand how teens think and work. And
if none of these bands actually stick, ironically, if they're
too narrow and too ineffective, you know, that fact itself
might bring the law down when a broader law might
be something that's harder to sort of defend from a
first blush of freedom of expression. But at least it works.

(04:07):
You know, you can't really ban stuff without any evidence
that it works.

Speaker 2 (04:11):
And I suppose the question is our Australian lawmakers prepared
to tweak this as they go, because I mean, the
rest of the world we are looking at this as
an experiment you know, and I'm you know, and so
we're interested to see how it unfolds. Do you think
that the you know, the Australia is open to kind
of playing around with it to get it right.

Speaker 3 (04:33):
Well, if one was sitting anywhere else in the world,
of course, that's exactly what one would be hoping, because
this is a great global experiment. But politics is complicated.
You know. Whether the government's willing to stand behind this
is a major agenda will no doubt depend on how
it polls and the vagaries of politics. As your listeners
may be aware, the minister who proposed this has got
herself in some pretty hot water around a spending scandal,

(04:57):
and so her political capital is fast diminishing. It will
depend on whether the Prime Minister is willing to put
his own political capital, which remains significant, behind this issue.
And I do think he believes in it, there's lots
of evidence of that, but whether he's willing to push
it through, including through amendments, will depend on how much
support he has in the Senate and how he thinks

(05:18):
it's playing out with parents and young voters.

Speaker 2 (05:22):
Rosaland Reddit doesn't believe it should be considered an age
restricted social media platform. Could they have a point there?
I mean, has read it different enough from the likes
of Facebook and Instagram and things.

Speaker 3 (05:36):
I am not an expert in this, but you know,
my sort of casual impression is that they are both
more political than some of the other platforms, so have
a stronger argument for constitutional protection in Australia, but also
more dangerous. They are, you know, places that have some
very tame content and some extremely non tame content. And

(05:57):
so if what you're worried about is body image for
fifteen year olds, Reddit should be out. But if you're
worried about extremism and people being kind of color it
into an echo chamber of extremists and misinformed views, Reddit's
right in the firing line. So my own view is,
ironically they do have a stronger claim to protection than

(06:17):
the likes of TikTok or Instagram, but they also have
a stronger case to be regulated. So I think that
argument is unlikely to succeed.

Speaker 2 (06:24):
Do you expect more challenges in the coming days and weeks?

Speaker 3 (06:29):
You'd think so, because of course every platform is going
to want to have its own approach to this, and
you know, if you're in, if you're meta you might
not want to be directly associated with reddits arguments, so
you've got to see how it plays out. But I
would expect that there will be a bit of a
pylon in terms of parties and challenges. They may or
may not then be all consolidated into one. But it's

(06:51):
going to be a fascinating legal experiment as well as
a political one. I do think, though, we're going to
have to wait and see if it sticks. I mean,
the teenagers are on it and they're getting around it
every day, and so there's going to be a lot
that happens before it gets to the High Court.

Speaker 2 (07:06):
We kind of knew that was going to happen, didn't we, Rosalind.
I mean, at the end of the day, it's sort
of the first step. A law can't just solve the
problem for everybody, you know, I can it. It's very
hard to get a law that's absolutely perfect that you
know can continue that, okay, I mean for everybody.

Speaker 3 (07:23):
Of course. My own interview is though it might not
be that well designed, because again, if the people who
make laws are in their forties and fifties and sixties
and they're legislating for clever fifteen year olds, things don't
always go well. And to me, you know, I'm involved
in training people for politics. I think it's a reminder
why we need young people in politics. If you want

(07:43):
this sort of issue, we need to hear from the
young people directly. They think it's a good idea and
they need to actually help design it well.

Speaker 2 (07:50):
And I've seen online as well that there's a lot
of comments that under sixteens haven't had their accounts restricted yet.
That's obviously going to be a problem if the platforms
aren't getting there under sixteens off their site, so you know,
dealing with it.

Speaker 3 (08:04):
Yeah, and then the question is how draconian do they get,
because you know, to really restrict might require pretty draconian measures,
but that's probably what's necessary for effectiveness. But then draconian
measures also undermine validity. So it's a catch twenty two
for the government and they need to litigate this really
strategically as well as enforce it strategically if they want

(08:27):
it to stick.

Speaker 2 (08:28):
Rosalind, thank you so much for your time this morning.
Really appreciated. That was Australian constitutional law expert Professor Roslin Dixon.

Speaker 1 (08:34):
There for more from the Sunday session with Francesca Rudkin.
Listen lived to news Talks. It'd be from nine am Sunday,
or follow the podcast on iHeartRadio