Elon Musk has said “freedom of speech is worth fighting for” after Australia’s cyber safety regulator, eSafety, dropped its federal court case over X’s refusal to block footage of a radicalised teenager stabbing a bishop at a Church in Sydney not just for Australians, but for users of the platform worldwide.
The case has been portrayed as a battle for control of the internet, and goes to the heart of a central and as yet unresolved issue in an increasingly online world, namely, whether government-led attempts to control the distribution within a country of what it regards as ‘harmful’ online material should be allowed to impinge on the rights of those beyond its borders to access that same material.
An initial ruling by federal judge Geoffrey Kennett last month overturned orders that videos of the bishop’s stabbing were to be hidden because they contained what Australian authorities argue is terrorist content that might influence others.
That decision still required ratification by the court, and a case management hearing had been due to take place at a later date. However, the country’s eSafety commissioner, Julie Inman-Grant, said on Wednesday that the watchdog has decided to drop the action following Judge Kennett’s ruling.
“I have decided to discontinue the proceedings in the federal court against X Corp in relation to the matter of extreme violent material depicting the real-life graphic stabbing of a religious leader at Wakeley in Sydney,” she said, adding: “I stand by my investigators and the decisions eSafety made.”
Grant went on to cite the prudent use of public funds as one of the reasons for dropping the case, although critics say it was also increasingly apparent that the Australian state’s argument in favour of a global ban on the material was legally indefensible.
Bishop Mar Mari Emmanuel was stabbed in the head during the April 15th attack in Christ the Good Shepherd church, which caters largely to western Sydney’s Assyrian community. The outspoken bishop, who has questioned the Muslim faith and has a global following, was stabbed by a 16-year-old boy as the church service was being streamed live on the internet. The attacker allegedly made comments in Arabic referring to insults against “my Prophet” before the attack.
Following the stabbing, the Australian federal court ordered Elon Musk’s X to hide videos of the attack from users globally, after the country’s eSafety Commissioner, Julie Inman Grant, launched an urgent court case seeking an injunction.
Under the Online Safety Act (2021), the eSafety Commissioner has the authority to make legal orders requiring social media platforms to take “all reasonable steps” to remove ‘class 1 material’ – i.e., extreme material, including footage of terrorist incidents – within Australia under threat of hefty fines.
Although the law’s stated purpose is to protect the online safety of Australians, it doesn’t explicitly state whether this should apply to content that is visible to users overseas. As a result, critics have long argued that the legislation would eventually lead to difficult interpretive questions about Virtual Private Networks (VPNs), which are easily accessible and can be used to obscure an internet user’s location.
While Meta immediately complied with the legal order, X objected, accusing the commissioner of overstepping her legal powers. The platform then threatened legal action, but said it would comply in the interim by “geo-blocking” the content, meaning it would not be viewable by Australian internet users unless they had access to a VPN.
This wasn’t enough for Grant, however, and at an urgent federal court hearing she demanded full removal, arguing that Twitter/X had failed to comply with the Online Safety Act because its interim decision to ‘geo-block’ the stabbing footage content rather than delete it globally did not constitute “all reasonable steps”.
X’s solution was ineffective, she said, because around a quarter of the Australian population has access to VPNs, which are capable of circumventing X’s geo-block.
The barrister representing X, Bret Walker SC, told the hearing that this interpretation of the law was “exorbitant”, and it was a “really remarkable proposition” for a country to argue the only way to control what is available to end users in Australia is “to deny it to everybody on Earth”.
An affidavit submitted by campaign group the Electronic Frontier Foundation (EFF) to the eSafety vs X proceedings made a similar point, calling for the court to consider the international impact that a ruling in eSafety’s favour would have in setting a precedent for allowing one country to enforce content bans on citizens of other countries.
“If one court can impose speech-restrictive rules on the entire internet — despite direct conflicts with laws [in] a foreign jurisdiction as well as international human rights principles — the norms of expectations of all internet users are at risk,” the EFF argued in an article summarising the affidavit.
Australia’s Prime Minister, Anthony Albanese, had attempted to portray the case as a struggle between his Labour government, which is determined to suppress ‘misinformation’, and Musk, the “out of touch … egoist” and “arrogant billionaire who thinks he is above the law”.
Musk responded by implying that Australia was acting as a global “Soviet censor” with Grant cast in the role of “censorship commissar”.
“Does the PM think he should have jurisdiction over all of Earth?”, he wrote in a follow-up post.
Following the initial hearing on April 22nd, Judge Kennett granted an interlocutory injunction, effectively giving X 24 hours to hide all recordings of the attack from all users worldwide.
At the Federal Court the following month, however, the judge threw out Grant’s application to extend that injunction. Given that the reasons for the judgment have not yet been released, it remains unclear whether the judge rejected the extension of the order on procedural or more substantive grounds.
Although the original removal notice still stands and it is likely the company will continue to ‘geo-block’ the content for users of the platform in Australia, the case for a global ban on the material has – for the moment – been seen off.
In this sense, eSafety’s decision to drop the case is at least partial vindication for self-styled ‘free speech absolutist’ Elon Musk, who had protested that the court order obtained by the regulator risked allowing one nation to control “the entire internet”.
