Since Australia’s under-16s social media ban began four months ago, Noah Jones’s online experience has been “pretty much the same”.

The 15-year-old Sydneysider says he hasn’t been kicked off any social media platform since the policy came into effect late last year.

“[I] had a minor inconvenience on Instagram but then got past it,” he says. “One of my mates got banned on Snapchat but then got around it.”

“That’s pretty much my whole experience of the ban.”

But Jones is one of two teens challenging the social media ban in Australia’s highest court – part of the Digital Freedom Project high court challenge that is due to be heard later this year.

The case is being fought on the grounds that Australians have a constitutional implied right to freedom of political communication, and the ban will prevent teens under 16 from engaging in political communication on social media platforms.

Jones’s online experience since December is similar to that of most teens under 16 in Australia.

The eSafety commissioner, Julie Inman Grant, revealed last month that despite over 5m accounts being deactivated, more than two-thirds of teens were still on the 10 platforms subject to the ban – Facebook, Instagram, Snapchat, TikTok, YouTube, X, Twitch, Kick, Threads and Reddit. Children were easily bypassing facial age estimation technology if aged within two years of 16, and half of the platforms initially included in the ban were being assessed for non-compliance.

eSafety also found 66% of parents whose children remained on social media said that the platforms had not asked their child to go through age verification, while others reported that if the age on an account was said to be 14 or 15, the platforms asked users to go through facial recognition and adjust their age rather than deactivating the account.

The communications minister, Anika Wells, has said Inman Grant should “throw the book at” non-compliant tech platforms, with fines of up to $49.5m per breach able to be sought through the federal court.

The fines are being threatened, but the high court will probably determine the law’s validity before any potential fine cases are heard.

Wells has also committed to legislating a digital duty of care that would require platforms to take reasonable steps to prevent harm taking place on their services, with legislation due to hit parliament this year.

Does ban need to be 100% effective?

The Digital Freedom Project, an initiative led by NSW Libertarian MP John Ruddick, is arguing that banning teens from holding social media accounts will prevent them from participating in discussions on political and government matters. The group has argued logged-out viewing – which is still possible for some platforms like YouTube – is not a meaningful substitute because teens cannot participate in the discussion without an account.

The fact that Jones has escaped the ban could strengthen the argument against the social media minimum age law, Prof Sarah Joseph of Griffith University’s law school says. If the law is ineffective, it may be a breach of the implied freedom of political communication.

“Such laws can only be constitutional if they are a proportionate means of achieving a legitimate purpose,” she says. “I am happy to assume that the purpose is legitimate, for example, protecting the mental health of young people.

“But an ineffective law cannot go very far in achieving its purposes, and therefore cannot be a proportionate means of achieving those purposes.”

However, the Monash University constitutional law professor, Luke Beck, says the purpose of the law isn’t to ban kids from social media, but to force social media companies to take reasonable steps to prevent under-16s from having an account.

“If some companies are not complying with the law properly, that doesn’t impact the law’s constitutional validity,” he says. “The legislation has various enforcement mechanisms.”

In freedom of political communication cases, Beck says the high court does not require legislation to be 100% effective in practice in achieving its underlying purpose: “It’s hard to think of any law that is 100% effective in practice: the law against murder doesn’t fully prevent murders, the law banning sales of R18+ movies and games to kids doesn’t fully prevent kids accessing those movies and games, and the law requiring ‘authorised by’ statements on political ads doesn’t fully prevent anonymous political ads.”

In the federal government’s defence in the high court case filed last month, it admits that the age restriction does impose a burden on the implied freedom of political communication. But, it argues, it has the legitimate purpose of reducing the risk of harm to users on platforms with features such as recommender systems, endless feeds, time-limited features, or feedback features like comments. Those features were identified in updated rules that the government only added in late March.

Jones will turn 16 in August, when the ban would no longer apply to him. His mother, Renee, says she has been strongly opposed to the social media ban, and had copped backlash online for her stance – including some saying her children should be taken away from her.

“It’s my right to choose how I raise my children in a digital world,” she says. “I recognise that there’s different levels of parent involvement and supervision, but that’s with every parenting issue, right?”

Renee says she has “hard and fast” rules at home on device use, including no devices in the bedroom, phones being locked away at night, and her children share their passcodes and passwords to their devices so she can check them.

“Noah is the kid who was … announced on Facebook; has only ever known mummies at the park with an iPhone; went to coding camp his entire existence,” she says. “And then one day, the Australian government went ‘we’re going to stop that’, in the years leading up to Noah’s first election.”

Jones says he understands the downsides of social media, including bullying and the availability of explicit content, but says most of his generation gets their news from social media and forms their views from what they see on those platforms rather than through TV or newspapers.

Renee says the legislation was rushed and is not working.

“Kids think there’s a lot of really horrendous content on social media. If you want to know what’s wrong with social media, ask a kid,” she says. “But the ban is not addressing that.”