Elon Musk, the renowned tech visionary behind groundbreaking ventures such as SpaceX and Tesla, recently emerged victorious in a legal dispute initiated by Australia’s eSafety Commissioner (Commissioner) against the company behind social media platform X (formerly Twitter) in the Federal Court of Australia.
In this article, Tom Mirolo-Lynam, Solicitor and Hayden Delaney, Partner, analyse the decision in eSafety Commissioner v X Corp [2024] FCA 499 and its implications for sovereignty and censorship in the digital age.
Background and context
The decision stemmed from footage of the Christ the Good Shepherd Church stabbing in April this year. On the evening of 15 April 2024, a lone assailant attacked and repeatedly stabbed Bishop Mar Mari Emmanuel during a sermon at the Assyrian Christ the Good Shepherd Church in Wakeley, New South Wales. A short video of the attack was circulated widely on X (video).
The Commissioner’s officers discovered various social media posts containing the video and determined that it warranted a removal notice being issued under section 109 of the Online Safety Act 2021 (Cth) (Act) to those parties hosting the video.
The Commissioner approached several major online service providers and issued them with removal notices. Some providers removed URLs containing the video from their platforms altogether.
X did not comply.
The Commissioner sought injunctive relief against X to remove the video and succeeded, at least temporarily, before a hearing could take place.
The clash between Musk and the Commissioner highlights the increasing tension between national laws and the borderless nature of the internet, which blurs geographical and jurisdictional boundaries that typically constrain actions in the physical world.
Musk’s defiance against the removal notices issued by the Commissioner has ignited a contentious debate over the reach of Australian law beyond its borders.
The decision
In considering the application for injunctive relief, the Court had to determine whether X had taken 'all reasonable steps' in line with the removal notices issued by the Commissioner.
As a result, X agreed to 'geoblock' 65 specified URLs in the removal notice, making them inaccessible to users with IP addresses in Australia. However, the Commissioner argued that this action was insufficient to comply with the removal notices.
X argued that a requirement for worldwide removal or blocking of the material exceeded what was 'reasonable' in the circumstances.
Justice Kennett said at [40]:
The policy questions underlying the parties’ dispute are large. They have generated widespread and sometimes heated controversy. Apart from questions concerning freedom of expression in Australia, there is widespread alarm at the prospect of a decision by an official of a national government restricting access to controversial material on the internet by people all over the world. It has been said that if such capacity existed it might be used by a variety of regimes for a variety of purposes, not all of which would be benign. The task of the Court, at least at this stage of the analysis, is only to determine the legal meaning and effect of the removal notice. That is done by construing its language and the language of the Act under which it was issued. It is ultimately the words used by Parliament that determine how far the notice reaches.
In assessing whether X’s efforts went far enough, or whether it had taken 'all reasonable steps' by geoblocking the video, His Honour stated that:
- the breadth with which the objects of the Act are expressed indicates that 'any of the end-users in Australia' in section 12 thereof should not be read narrowly. The Court did not find anything in the Act suggesting that the location of the IP address through which a person physically located in Australia connects with the internet was intended to make a difference as to whether they were to be denied access to the video by operation of a removal notice. The phrase was therefore intended to have its ordinary meaning, and 'removal' meant making the material inaccessible to 'all users physically located in Australia';
- the argument that making the 65 URLs inaccessible to all users of X’s platform everywhere in the world is not a step that was 'reasonable' to require X to perform to ensure that the URLs were inaccessible to Australian users (and therefore was not a step required by the removal notice) was deemed 'powerful' by His Honour; and
- if section 109 of the Act were read to impose such a requirement, it would clash with what is sometimes described as the 'comity of nations' in a fundamental manner. His Honour noted that there was a real difficulty in making orders which purported to have a global effect and would ultimately require the cooperation of other countries.
It was concluded that the potential consequences for the orderly and amicable relations between nations, if a notice with the breadth contended for were enforced, were obvious.
In summing up his opinion, His Honour further expressed at [50]:
If given the reach contended for by the Commissioner, the removal notice would govern (and subject to punitive consequences under Australian law) the activities of a foreign corporation in the United States (where X Corp’s corporate decision-making occurs) and every country where its servers are located; and it would likewise govern the relationships between that corporation and its users everywhere in the world. The Commissioner, exercising her power under s 109, would be deciding what users of social media services throughout the world were allowed to see on those services. The content to which access may be denied by a removal notice is not limited to Australian content. In so far as the notice prevented content being available to users in other parts of the world, at least in the circumstances of the present case, it would be a clear case of a national law purporting to apply to ‘persons or matters over which, according to the comity of nations, the jurisdiction properly belongs to some other sovereign or State’…
On that basis, the Court found that the Commissioner failed to establish a prima facie case warranting injunctive relief.
His Honour did say, however, that even if that were so, he would be hesitant to extend the injunction because:
- the injunction had the potential, if complied with or enforced, to have a literally global effect on the operations of X, including operations that have no real connection with Australia or Australia’s interests;
- the interests of millions of people unconnected with the litigation would be affected;
- the Commissioner failed to demonstrate that it would have strong prospects of success on its final relief sought; and
- there was good reason to think that the interim injunction would not be effective.
On that last point, the Court specifically noted that the removal of the video from X would not prevent people who wanted to see the video and have access to the internet from watching it and that it was most likely that other countries would disparage or ignore the notice in any event.
Conclusion
In essence, Musk's skirmish with Australia illuminates the evolving dynamics of jurisdictional issues in cyberspace. As technology continues to outpace legislation, navigating the boundaries of national sovereignty and the enforceability of law in the global, digital economy becomes increasingly challenging.
The decision gives clarity to businesses operating in the technology sector, which often operate unconstrained by geographical boundaries. The Court’s decision, in our view, strikes a sensible balance between the need of sovereign States to make and enforce their laws, and the needs of a foreign corporation with users of its services who are outside (and have no connection with) Australia to remain unaffected by those laws.
Foreign businesses looking to operate in Australia should see this decision as evidence of the stability of Australia’s legal system, and the effectiveness of its checks and balances over administrative power.
You can access the full text of Justice Kennett’s decision here.
For more information, please get in touch with our Technology and Digital Economy practice.