Elon Musk has won a legal victory over the Australian government, after a federal court rejected a bid by eSafety, the country’s cyber safety regulator, to extend a temporary order for X (formerly Twitter) to block footage of a radicalised teenager stabbing a bishop known for his critical and outspoken views on Islam at a church in Sydney (FT, Guardian, Times).
In a case portrayed as a battle for global control of the internet, an initial ruling by judge Geoffrey Kennett overturned orders that videos of the bishop’s stabbing were to be hidden because they contained what the Australian authorities argue is terrorist content that might influence others. The decision still requires ratification by the court this week, and the reasons for the initial judgment will be released at a later date.
However, Judge Kennett’s decision appears to be at least partial vindication for Musk, who had protested that Australia’s court orders, obtained last month by the eSafety Commissioner, the country’s online watchdog, risked allowing one nation to control “the entire internet”.
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 for the removal of ‘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, Twitter/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 Australian law because its interim action was ‘only’ to “geo-block” the stabbing footage content, not delete it globally.
That 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, has 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.
In his decision at the Federal Court last week, however, Judge Kennett threw out Grant’s application to extend that injunction.
“The orders of the court will be that the application to extend the interlocutory injunction … is refused,” Kennett said as he delivered his ruling. 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.
The court could also still issue a final ruling in favour of the Australian government after a full court hearing, although Judge Kennett’s recent decision suggests this is now less likely.
In a statement on the Federal Court decision, eSafety said that the matter will return to Court for a case management hearing on Wednesday May 15th.
