Teen social media ban tweaked in secret deal

Even by the time Prime Minister Anthony Albanese said he would introduce a bill to legislate his teen social media ban back in November after months of discussion, its details weren’t yet set in stone.

They were still not cemented when Albanese convened a national cabinet to “go through some of the details” the following day.

Less than two weeks later, when the Online Safety Amendment (Social Media Minimum Age) Bill 2024 was introduced into Parliament, few noticed that the legislation was missing one small but crucial element that would drastically change the ban.

This missing key provision — called the “exemption framework” — had been previously described publicly by the government itself as being crucial to making sure that the law would “protect, not isolate, young people”. The exemption offered tech companies a way out of the ban if they were able to prove that their apps weren’t risky for teens to use.

Removing it, as one insider put it, made “no fucking sense” and turned the law into something that will “probably now lead to more harm than good”.

Crikey can reveal that the decision to scrub this part of the law was the result of an eleventh hour deal made between the Labor government and the opposition to get bipartisan support for the legislation so that the signature Albanese policy would pass parliament before the election.

The political dimension sheds new light on the already rushed development of the “world-first” law. Now, the decision to remove the exemption framework has been thrust back into the spotlight as the Albanese government looks set to backflip on the decision and bring it back in via another means.

Spokespersons for Communications Minister Anika Wells and shadow communications minister Melissa McIntosh declined to comment for this article.

In the months leading up to the Albanese government passing the teen social media ban (or the “delay” and “minimum age” as the government calls it), the policy came with a release valve.

Social media platforms like TikTok and Instagram would need to take reasonable steps to stop children under 16 from having accounts.

But there was an out: if social media platforms could prove they were low-risk to children by avoiding features deemed harmful, they could be exempted from the law.

This “exemption framework” was meant, according to then communications minister Michelle Rowland in an October speech, “create positive incentives for digital platforms to develop age-appropriate versions of their apps, and embed safe and healthy experiences by design”.

One person familiar with the drafting of the law but not authorised to speak publicly told Crikey that this was an important part of the legislation.

“[The exemption framework] was really cool. It solved a specific problem of not-safe innovation,” they said.

The government would set out a list of design features that tech companies would need to implement in order to avoid having to restrict teens from their platforms.

If companies released versions of their apps — or updated their existing apps — without features like algorithmic recommendations, engagement prompts like push notifications, and AI chatbots, they could apply to be exempted from the ban. Some existing child-focused apps, like YouTube Kids, were mooted as potentially qualifying.

From a policy standpoint, the idea was to encourage platforms to make better, safer apps or face being banned.

This exemption framework was spoken about publicly and privately for months. When the government consulted with tech companies, children’s and mental health groups, and legal experts, it was sold as an important part of the law.

“It drives improvement in the market, while providing an opportunity for connections, not harms, to flourish,” read departmental talking points prepared for Rowland’s October 31 meeting with Robert French, a former High Court chief justice who wrote a report on a teen social media ban for the South Australian government.

It wasn’t a universally supported idea — Google argued in a public submission that the government should individually specify which social media platforms would be banned rather than a broad ban that companies apply to opt out of — but it had a lot of backing among industry and civil society groups.

The disappearing exemption framework

In mid-November, something changed. As previously reported by Crikeythe exemption appeared in media reports until November 16. The first sign that it was gone was in talking points prepared by the department for Rowland from the day that the bill was introduced into parliament, November 21, that were obtained by Crikey through a freedom of information request.

Preparing for a question “is there an exemption framework in the bill to encourage safe innovation”, the minister was advised to not answer directly and instead say that other exemptions and a digital duty of care would protect children online.

Two sources with knowledge of the bill’s passage told Crikey that the decision to remove the framework was the result of a political deal between Labor and the opposition.

The Coalition had repeatedly publicly advocated for harsher versions of the ban. Then opposition leader Peter Dutton called for a teen social media ban before Anthony Albanese. Its then shadow communications spokesperson David Coleman had pushed for Snapchat to be included in the ban when Rowland appeared to suggest the app may not be included.

And, when Albanese announced his plans to introduce the teen social media ban law, Coleman immediately opposed any exemptions.

“These platforms are inherently unsafe for younger children, and the idea that they can be made safe is absurd. The government shouldn’t be negotiating with the platforms,” he said at the time.

A source with knowledge of Coleman’s opposition said that the opposition was worried that tech companies would figure out ways to game a prescriptive checklist of features, and end up not preventing harm to Australian teens.

Its removal came so late in the day that the government’s own public documents still contained references to the exemption framework, including how effectively it could push platforms to limit the “risk of harms”.

“This approach from government would push the platforms to take responsibility for children’s safety, and incentivise safe innovation for services that provide the benefits of access to social media while limiting the risk of harms,” read the ban bill’s impact analysis document that was published alongside the legislation.

There was a sense of shock among those who had been consulted on the bill when it was suddenly introduced without the exemption framework.

Several people in the tech industry who were consulted on the legislation said they only found out the exemption framework was gone when the bill was tabled.

Those working on the law inside the government knew it was happening a few days before, but were disappointed with the deal.

“[The original bill] would have put Australia in a leading position to regulate big tech in a way that wasn’t just overly punitive. But then it got gutted six ways to Sunday,” one person said.

“I think, now [this law] will now lead to more harm.”

Six days after the bill was introduced to parliament  — including a blitz inquiry that received 15,000 public submissions in a day — it passed the House of Representatives with bipartisan support. Two days after that, the Senate voted to make it law.

The return of the exemption

In the months since the law passed, the government has been working on implementation.

The way that the ban is legislated means that many of its details aren’t enshrined in law, but are rather laid out in regulations which don’t need to be passed by parliament.

The “online safety rules” regulation, which is expected to be published in the next two weeks, will decide which platforms will be included in the ban.

Over the past few months, there has been growing speculation that the Albanese government will, via this regulation, bring back the exemption framework in another form.

The first public sign that this was on the cards was in formal advice given by eSafety commissioner Julie Inman Grant to the government in mid-June.

While Inman Grant’s call to remove a bespoke, proposed exemption for YouTube garnered most of the attention, the eSafety commissioner’s advice also suggested either adding a “two-pronged test that references features and functionality associated with harm” or to “exclude lower risk, age-appropriate services which have effectively minimised the risk of harm for children of all ages”.

Since then, sources in government and the tech industry believe that the government will create some formal way for tech companies to seek exemptions from the rule.

Yesterday, Capital Brief reported that at least one person briefed on the draft rules said that platforms would be eligible to apply for exemptions.

Whether the rules just create a pathway for exemptions or are more prescriptive about the features that platforms need to avoid, there’s tentative optimism from the tech industry that the government will offer them some way to let teens access their services if they can assuage the government’s concerns.

Companies like Meta and Google are highlighting their development of children-specific applications or accounts which come with additional safety features like parental controls and limits on messaging capabilities.

The ban is set to come into effect in mid-December for whichever platforms it will end up applying to.