Federal Court chooses not to extend temporary order blocking terrorist attack vision on social media platform X

Federal Court chooses not to extend temporary order blocking terrorist attack vision on social media platform X
  • PublishedMay 13, 2024

The Federal Court has chosen not to extend a temporary order for social media company X, formerly Twitter, to hide videos of a Sydney terrorist stabbing globally.

The eSafety Commissioner has been trying to force the platform to take down about 60 instances of the footage, showing an attack on Bishop Mar Mari Emmanuel in Wakeley in Western Sydney, in April.

Under the Online Safety Act, passed in 2021, the Commissioner, Julie Inman Grant, has the power to demand the removal of so-called “class 1 material”, under threat of significant fines.

A man stands at a pulpit and raises his hands as he talks to a crowd.
Bishop Mar Mari Emmanuel during a sermon posted to The Good Shepherd Church Youtube channel.(ABC News: Supplied: YouTube)

In the days following the stabbing, X agreed to “geoblock” the posts, meaning most Australian users could no longer see them, and refused the eSafety Commissioner’s removal notice, which would have had a global effect.

Elon Musk threatened to sue in response, but the regulator acted first, making a successful application in the Federal Court for a temporary injunction to force X to hide the videos.

That court order has been in place since April 22, but X has not obeyed.

This morning, Justice Geoffrey Kennett denied the eSafety Commissioner’s application to continue the existing order beyond 5pm Monday, when it is due to expire.

On Friday, the court heard arguments about the impact of X’s refusal to comply with the court’s authority, and whether continuing or ending the order would make a greater mockery of the court.

Counsel for the eSafety Commissioner, Tim Begbie, said if X’s defiance led to a lapse of the court’s orders, then “what that says about the authority of the court is pretty striking”.

Failing to comply with court orders can ultimately lead to a contempt of court charge.

For individuals, that can theoretically mean lifetime imprisonment, and for companies, it may mean a fine.

Court argues over the validity of take-down notice

In court on Friday, X’s lawyer Bret Walker said the company had not complied with the injunction because the Commissioner’s initial take-down notice was not valid.

The argument over the injunction has provided a preview of a larger fight that’s yet to play out between the two parties, on that very question.

At the heart of the matter is whether an Australian regulator has the power to insist on global content removals.

Publicly, X’s owner, billionaire Elon Musk, has made a case around free speech, trading insults and barbs with Prime Minister Anthony Albanese.

But eSafety’s lawyer, Tim Begbie KC, told the court: “This is not a free speech policy debate, this is about … the Online Safety Act”.

The Commissioner argued that geoblocking is insufficient, with Mr Begbie citing research that a quarter of all end users in Australia use a Virtual Private Network, or VPN, meaning they can still see geoblocked posts.

He told the court it was the clear intent of the Federal Parliament that the Online Safety Act would be able to protect all end users in Australia.

He also pointed out that the legislation makes provision for dealing with acts “not done within Australia”.

The eSafety Commissioner’s court action initially enjoyed bipartisan support, although cracks have subsequently emerged.

Opposition leader Peter Dutton has since said it was “silly” to expect global removal, and others have echoed those views, while still expressing broad support for the regulator’s mission.

Justice Kennett is yet to provide reasons for his decision.

A final hearing is expected within a matter of weeks. 


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