Standing up to big tech?

Prof Elizabeth Handsley, CMA’s President, outlines the government’s cynicism in publicly standing up to big tech while privately granting YouTube an exemption from the legislation.

If you thought that Australia was getting robust legislation to protect children from the harms of social media, think again. If you thought the Government committed an act of political bravery late last year, standing up to big tech in the name of children’s wellbeing and healthy development, think again. Recent revelations show the depth of the national Government’s cynicism, trumpeting a determination to ‘make big changes to hold platforms to account for user safety’ while privately succumbing to lobbying to exempt at least one of those very platforms.

Children and Media Australia supported the passage of the Online Safety Amendment (Social Media Minimum Age) Act on the basis of having read the legislation itself, the Second Reading Speech and the Explanatory Memorandum. From those documents, we understood that the new law would impose obligations on social media platforms, broadly defined, but allow the Government to grant exemptions. The Explanatory Memorandum listed certain kinds of platforms to which the Government intended to grant exemptions, which we thought was strange, but the document also stated that ‘the Government [would] undertake public consultation on the draft rules’ – exactly the process one would normally expect in a parliamentary democracy. Therefore we had faith that there would be an opportunity to put any proposed exemptions to the test, before any final decisions were made.

Recent revelations show this faith to have been ill-placed. Not only have there been minimal opportunities for consultation on the proposed exemptions, we recently learnt that the Minister made a written commitment to YouTube’s CEO of an exemption for that platform, in a letter sent on 9 December last year. (The legislation was passed on 29 November.)

The letter, obtained by The Guardian under the Freedom of Information Act, says that the Minister, in her Second Reading Speech, had stated the Government’s ‘commitment to exclude YouTube from the definition of an age-restricted service. I am writing to reaffirm the commitment that a re-elected Labor Government would give effect to this definitional exclusion for YouTube video streaming services, including YouTube Kids.’

Regarding the first claim, about the content of the Second Reading Speech, we are unable to find any such ‘commitment’. Rather, she said that the power grant exemptions was ‘expected to deem out of scope services such as Facebook Messenger Kids, and WhatsApp. The rule will provide for an ‘out of scope’ status to also be applied to services like ReachOut’s PeerChat, Kids Helpline ‘MyCircle’, Google Classroom, YouTube, and other apps that can be shown to function like social media in their interactivity but operate with a significant purpose to enable young people to get the education and health support they need.’ This is very subtle language in which to state a ‘commitment’ to the Australian people through our Parliament. It sounds more like a statement of intent to submit an idea to a consultation process.

Indeed, the Minister’s letter to the YouTube boss refers to the expected consultations, so it remains a mystery how she could be making a commitment to a certain outcome – that’s if those consultations were to be at all meaningful. We now realise what a big ‘if’ that is.

Another mystery is why YouTube considered it necessary or even worthwhile to lobby the Minister for an exemption. The legislation and surrounding documents make it clear that the platforms’ new obligation would relate only to the holding of accounts by under-16s, not to accessing information in the ‘logged-out state’. Australian children would still be able to watch videos on the platform to their heart’s delight, they just couldn’t hold an account. There are some serious questions to be asked about why a platform would be so insistent on getting access to under-16s as account-holders, rather than just as viewers.

And then there is the question why the Government considers it necessary for children to have a YouTube account to get access to ‘the education and health support they need’ on the platform – which is the alleged policy basis for the exemption.

It is quite bewildering to see a Government beating its chest about protecting children online while quietly carving out swathes of what is currently threatening those very children’s interests. It’s also bewildering to see them passing legislation that doesn’t express all their intentions (or ‘commitments’) as a Government. If they were so clear that the legislation should not cover a particular platform, the democratic and transparent thing to do would have been to include that exemption in the legislation. Now that they are re-elected, they have some explaining to do.