Google threatens to sue the Australian Government if YouTube is added to social media age ban

Google is threatening to sue the Australian Government if YouTube is included in the social media ban for children aged 16 and below.

EXCLUSIVE: Tech giant Google is threatening to sue the Australian Government on “constitutional grounds” if YouTube is included in the social media ban for children aged 16 and below.

In a letter sent to Communications Minister Anika Wells on Thursday and obtained by this masthead, the company warned it was “considering its legal position” given the government was looking at “resiling” from its previous decision to exempt the platform.

YouTube is not currently captured by the age restriction due to take effect in December, but is being considered for inclusion following a recommendation from Australia’s eSafety Commissioner.

Communication Minister Anika Wells. Picture: Facebook

In a warning to the government, YouTube outlined three legal options open to it, including a potential High Court challenge arguing the ban would be an “impermissible fetter on the implied constitutional freedom of political communication”.

The company claimed the age limit would prevent young adults under the age of 16 from having an account and being able to “contribute to political communication by posting videos on YouTube and by making comments on those videos”.

YouTube is currently not included in the ban. Picture: Gabby Jones/Bloomberg via Getty Images

In the letter, which was signed by YouTube Australia and New Zealand head of government affairs and public policy Rachel Lord, and Google Australia and New Zealand director of legal Shoshana Shields, the company also rejected the premise of the potential ban by arguing YouTube was a “video streaming platform” rather than a “social media platform” as defined in the legislation.

Thirdly, the company cast doubt on whether the late inclusion of YouTube would be an “appropriate” use of the minister’s power given the original legislation was passed last year on the “express understanding” the platform would be excluded.

Julie Inman Grant, Australia's eSafety Commissioner addresses the National Press Club of Australia in Canberra on "Swimming between the digital flags: helping young Australians navigate social media's dangerous currents". Picture: NewsWire / Martin Ollman

“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,” the letter said.

eSafety’s advice recommended no single platform or service, whether YouTube or others, be specifically excluded under the rules due to the fast-evolving nature of online platforms meaning their risk profile could quickly change.

But Google said it rejected the “robustness” of that advice, and argued nothing in it was “contrary” to the matters already considered by the government when the legislation was drafted and passed.

Google does not want YouTube included. Picture: AFP

Under the current laws, social media platforms like TikTok, Snapchat, Instagram and Facebook are captured, but YouTube, Headspace, Kids Helpline and Google Classroom are not.

The letter said “regardless of its legal options” the company remained of the view there were “strong policy reasons” for its exclusion describing the issue as a “matter of grave concern to YouTube”.

It also claimed the ban would not protect children from harm as they would still be able to watch videos without an account, which would also expose them to more detrimental content as this would mean “targeted safety features that apply to the accounts of children and young adults will no longer apply”.

There has been a separate push for a distinction between the company’s main video platform and its “YouTube Shorts” component, which uses a different algorithm.

The company said if the government was considering going ahead with its inclusion it wanted “an opportunity to provide further submissions before any such decision is made”.

“If ultimately no exclusion is expressly provided, then YouTube contemplates having to engage with the options available to it,” the letter said.

The government declined to comment.

Anne Twomey AO, Australian academic and lawyer specialising in Australian constitutional law. Picture: Louise M Cooper

Constitutional law expert Professor Anne Twomey said YouTube would have to prove Australians aged under 16 were having their implied right to comment on political issues to inform their vote “disproportionately” limited for no “legitimate” reason.

“A legitimate reason might be protecting public safety ... protecting them from violence and discrimination or protecting them from public health,” she said.

Prof Twomey, who has a YouTube channel explaining constitutional issues, said in her view it would likely be a “fairly minor limitation,” especially given the ban didn’t stop children viewing videos, only commenting and posting.

“Under 16s don’t have a right to vote so on the one hand it may not be as important that they engage in political communications,” she said.

“The other argument presumably YouTube would make is the way you form your views on how to vote at 18 may come through your engagement with the world in the period leading up to that.”

A YouTube spokesperson said they were deeply concerned by recent reports the social media ban was being “influenced” by “legal threats from TikTok” when previously the government had been “firm” in its decision to exclude YouTube from the age restriction.

“Signals that the government is contemplating an abrupt policy reversal have prompted us to seek further clarity on this matter,” she said.

The spokesperson said YouTube was a “video sharing platform, not a social media service”.

TikTok has denied reports of legal threats aimed at forcing the government to include YouTube in the ban.