Revealed: YouTube’s three legal grounds for challenging inclusion in Australia’s under-16s social media ban

YouTube has outlined three grounds on which it could legally challenge its inclusion in the under-16s social media ban, which is due to come into effect in just over two months.

In July, the federal government reversed an earlier decision to exclude YouTube from the ban, acting on advice from the eSafety commissioner, Julie Inman Grant. The advice was based on research that found 76% of 10 to 15-year-olds had used YouTube, and 37% of children who had seen or heard potentially harmful content online had found it on YouTube.

As reported at the time, YouTube made legal threats to the communications minister, Anika Wells, in a letter outlining the company’s concerns over the change of policy. Guardian Australia has now obtained a copy of the letter under freedom of information laws, revealing the company’s legal concerns about the law.

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YouTube’s primary concern is that the ban could be an “impermissible fetter” on the implied constitutional freedom of communication on YouTube, which would prevent those under-16 from contributing “to political communication by posting videos on YouTube and by making comments on those videos”.

The second is the company’s claim that YouTube is not a social media platform but a video streaming platform.

Related: YouTube makes last-ditch attempt to lobby government against inclusion in under-16s social media ban

“Video content is disseminated on a one-to-many basis. Any limited social features that are available on YouTube (such as the ability to comment on videos) are ancillary to this purpose,” the company said.

Thirdly, the company said procedural fairness requirements at the time had not been met as YouTube had not been given a chance to respond to the concerns that had led to the change of position.

The company said the reversal decision came after the legislation was passed on the express understanding YouTube would be excluded and “there is real doubt as to whether the removal of that exclusion is an appropriate exercise of the minister’s power”.

“To the extent that the minister may be purporting to rely on the eSafety commissioner’s advice as a basis for its change, we do not consider this can form a sufficient or proper basis for the change in position.”

YouTube did not respond to a request for comment.

More than two months since the letter was sent, and just over two months until the 10 December commencement of the social media ban, YouTube has yet to challenge the law in court.

Dr Jake Goldenfein, a senior lecturer as University of Melbourne’s law school, said the political communication argument may be tested, but the stronger cases could be around procedural fairness and how the government defines what social media is in the legislation.

“They’re probably stronger arguments, because that raises the fact that there’s a lot of ambiguity and a lot of flexibility in the way in which social media platforms have been defined in the act that kind of make the whole scheme a little bit incoherent,” he said.

“YouTube is a very diverse kind of platform compared to something like TikTok, and YouTube … is really asking the government to clarify, what is it about?”

Terry Flew, professor of digital communication and culture at the University of Sydney, said it is “highly unlikely” MPs and senators would have changed how they voted on the legislation in parliament on the basis of whether YouTube was included in the ban or not, but that would be determined by the courts if the company brings a case.

As to whether YouTube wanted to define itself as something other than social media, such as being considered more like television, Flew said that would bring other concerns for the company.

“I think Google would probably want to be wary of going too far down this path, because it could have a whole lot of downstream implications for them. Were they to say that then you could say: ‘Well, therefore, do classification criteria like MA 15+ and so on become relevant to YouTube content?’”

In other documents released under FoI, YouTube name-dropped singer Troye Sivan as an example of an Australian who “got started” on YouTube as a teenager. The company also criticised Inman Grant’s definition of “harmful content” as too vague.

“The eSafety commissioner used categories of ‘harmful content’ as a measure. These categories included: ‘shows or encourages illegal drug taking’, ‘extreme real-life violence’ or ‘something else upsetting’.

“The categories … could capture content that while upsetting may not necessarily be of the type of content that should be restricted. In fact this content is readily available across TV, movies, streaming platforms, and others.”