The exemption for YouTube from the Social Media Ban for kids under 16 has been called into question by Australia’s eSafety Commissioner Julie Inman Grant in advice provided to the Minister responsible for the legislation.

Commissioner Inman Grant’s advice on the draft rules that are required to be put in place alongside the already passed legislation covers 17 pages and includes five core options for the Minister to consider.

Firstly, and most critically, “The YouTube is removed from the draft rules”. This is in reference to the exemption noted for YouTube on the grounds of it having some level of educational relevance and it’s exemption has stood out as curious among many observers, myself included.

Secondly, that the rules more clearly “provide guidance to support a shared understanding of the Government’s intention to avoid future enforcement challenges”, and in this drawing some questions around what exactly constitutes “primary” and “significant” purpose for the services in question.

Third, that “Consideration is given to amending the draft Rules so they reflect both the propose of the service, as well as it’s risk of harm”. This is actually fascinating, because it draws into question controls or measures within the services that mitigate risks to children.

Fourth, that “consideration is given to introducing a new Rule to exclude lower-risk services that are appropriate for young children”. Basically, this allows for the possibility for low risk apps to be used by kids.

And finally that “implementation is monitored to identify any emerging challenges which should be addressed through further rules” – this is almost obvious, but also highlights the vague and perhaps rushed nature of the rules.

The eSafety Commissioner’s thoughts on YouTube are somewhat damning to those who previously held certain that it should be excluded from this ban. In the submission, eSafety notes that “While YouTube has many educational and otherwise beneficial uses, eSafety is concerned that the popular use of YouTube among children coupled with reports of exposure to harmful content and the platform’s use of certain features and functionality is not consistent with the purpose of the SMMA obligation to reduce the risk of harm. “

eSafety’s own research highlighted this, with “Results from eSafety’s recent Youth Survey indicated YouTube was the most popular social media platform1 children had ever used, with 76% of 10 to 15-year-olds having used YouTube, making it significantly more popular than other social media platforms such as TikTok, Instagram, and Snapchat, especially among the 10 to 12-year-old cohort” 

That 10 to 12 year old number is where the real concern sits. YouTube Shorts is a platform used by kids even before traditional social media companies allow kids to join at the age of 13.

The Ministerial guidance highlights these very features saying “YouTube currently employs persuasive design features and functionality that may be associated with harms to health, including those which may contribute to unwanted or excessive use (such as infinite scroll, auto-play, qualitative social metrics, and tailored and algorithmically recommended content feeds). Separately and combined, these features may encourage excessive consumption without breaks and amplify exposure to harmful content. These design features and functionality, alongside short-form video content, are also widely used on services like TikTok and Instagram, which I understand are intended to be captured by the SMMA obligations. “

Perhaps the most direct statement on this was “Given the known risk of harms on YouTube, the similarity of its functionality to other online services, and without sufficient evidence demonstrating that YouTube predominately provides beneficial experiences for children under 16, providing a specific carve out for YouTube appears to be inconsistent with the purpose of the Act“.

For those who worry about how teachers or parents will be able to share the “educational” videos on YouTube, the eSafety Commissioner points out clearly “the SMMA obligation is limited to preventing children from having accounts. If YouTube is not excluded, nothing in the Act precludes children from continuing to access YouTube (or any other service) in a ‘logged out’ state.” 

Interestingly, and perhaps I’m reading this wrong, but the eSafety commissioner in Option 3 seem to elude to “safeguards” and “safety measures” and while in some ways this appears to be a way to balance a service considered safe but without safeguards being included in the ban, I wonder if it should be considered in the opposite way.

For example, both TikTok and Instagram have done a lot of work to provide strict parental controls on their platforms. Controls that both limit time on the platform as well as filtering content, as well as limiting things like messaging and public posting.

These are the limitations kids should have all platforms – mine do – but if they are not setup, your kids are basically seeing adult content and therefore should most certainly be subject to this form of ban.

eSafety’s guidance on this says “A potential approach to addressing certain harms in the Rules is to adopt an eventual reform involving a two-pronged test that references features and functionality associated with harm. The two-pronged test could require the online service to meet the existing purpose/use test and also meet a requirement to implement effective safeguards and safety measures if it has any of the features and functionality identified as posing a high risk of relevant harm. The criteria to have safeguards and safety measures for the identified features and functionality would need to be the default setting for all accounts“. 

Frankly, this document is the most sensible response to the whole topic and should have been the foundation for the rules. Instead, we are six months away from implementation and still not sure exactly how or what will be banned.