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, adn 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.
YouTube’s primary concern is that the ban could be an “impermissible fetter” on the implied constitutional freedom of communication on YouTube, which woudl 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.
“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”.
YouTube’s Concerns Over Regulation as it Navigates Identity as a Platform
Recent documents released under freedom of Information (FoI) laws reveal YouTube’s internal discussions regarding potential regulation and its positioning within the media landscape. The company appears wary of being classified as a traditional broadcaster, like television, due to the implications this could have for content moderation and age restrictions.
According to Dr. Terry Flew, a communications professor, Google (YouTube’s parent company) is likely cautious about embracing a “television” identity. “were they to say that YouTube is like television], then you could say: ‘Well, therefore, do classification criteria like MA 15+ and so on become relevant to YouTube content?'”[https://wwwtheguardiancom/technology/2024/jan/21/youtube-google-esafety-commissioner-troye-sivan[https://wwwtheguardiancom/technology/2024/jan/21/youtube-google-esafety-commissioner-troye-sivan This suggests a concern that stricter content classification standards, similar to those applied to television programs, could be imposed on youtube’s vast library of user-generated content.
The released documents also show YouTube highlighting the success stories originating on its platform,citing Australian singer Troye Sivan as an exmaple of someone who “got started” on YouTube as a teenager. This likely serves to emphasize the platform’s role as a launchpad for creative talent.
Furthermore, YouTube criticized the eSafety Commissioner’s definition of “harmful content” as overly broad.the company argued that categories like “shows or encourages illegal drug taking,” “extreme real-life violence,” or “something else upsetting” could encompass content that, while potentially disturbing, doesn’t necessarily warrant restriction, as similar content is readily available on traditional television, in movies, and on other streaming platforms. https://www.theguardian.com/technology/2024/jan/21/youtube-google-esafety-commissioner-troye-sivan
These disclosures offer insight into YouTube’s strategic considerations as it faces increasing scrutiny regarding its responsibility for the content hosted on its platform and its overall identity in the evolving digital media habitat.