A recent Australian court battle between the country’s eSafety commissioner (overseeing Australia’s self-professed “world leading” Online Safety Act) and Elon Musk’s X (formerly Twitter) reveals issues about internet content and free speech. Should the laws, interpretations and enforcement of one country’s view of “internet safety” be able to trump platforms’ content management decisions to allow the content to be seen in other parts of the world in the interests of free speech, enabling consumers to form their own views? 

The case comes in the wake of a high-profile mid-sermon knifing of an Assyrian Christian bishop and at least three others by a 16-year-old boy in Sydney last month. The perpetrator and seven other associated teenagers have been arrested on terrorism charges. All those injured in the stabbing, including the perpetrator, survived. However, reportedly over 50 police officers were injured and 20 police cars damaged in the ensuing riot that erupted outside the church.

The incident was captured on the church’s livestreamed video of the sermon and subsequently widely distributed on social media. The bishop reportedly has an avid international following on TikTok, in part because of his divisive preaching, with homilies ranging from “the Bible to fiery criticisms of homosexuality, COVID vaccinations, Islam and US President Joe Biden’s election.”

As the stabbing was deemed an act of terrorism, the eSafety Commissioner requested media platforms to take down the content, not just in Australia, but worldwide. The worldwide ban was considered this necessary for the Commissioner to fulfil her duties of protecting all Australians. Removing the content only in Australia (geo-blocking) would not be sufficient: apparently a quarter of Australians use virtual private networks to access the internet, in order to get around a range of geo-blocking tools used by many content providers to control where content can and cannot be viewed. 

Most international social media platforms immediately complied (or arguably had taken the content down anyway because of commitments to the Christchurch Call to eliminate terrorist content online). X removed the content from its Australian servers, but not worldwide, as it deemed it would be a violation of free speech to do so beyond Australia. The Commissioner took legal action, seeking a judicial order that X to take down the content worldwide immediately, or face a daily fine of $785,000 for as long as the content remained online. The judge granted an interim injunction, requiring X to comply while he considered a final ruling. Australian Prime Minister Anthony Albanese also joined the affray, stating “social media has a social responsibility,” and “I find it extraordinary that X chose not to comply and are trying to argue their case.” He also called Musk “an arrogant billionaire”. 

X (i.e. Musk) pulled no punches.  He has an (unlikely) ally in the stabbed Bishop, who while acknowledging the Australian Government’s concerns about the graphic nature of the video content, stated: “It would be of great concern if people use the attack on me to serve their own political interests to control free speech.”

The matter draws into sharp focus the role of national laws and the self-imposed standards of platform operators when it comes to content moderation. The Commission lawyer argued that this is not about free speech, but the ability of the regulator to protect Australian citizens from objectionable content arguing that X’s opposition to global removal could not be “right” because X would in effect be determining what was “reasonable” within the terms of Australia’s Online Safety Act. Global removal in these circumstances is reasonable, the lawyer claimed, because “it would achieve what parliament intended, which is no accessibility to end users in Australia.”  

X’s lawyer, on the other hand, claimed the firm had acted reasonably: “the idea that it’s better for the whole world not to see this obviously newsworthy matter, presumably to form their own views, …. is a startling one.” “There should be much more than a ripple of apprehension that … the only way we can control what’s (not) available to end users in Australia … (is) to deny it to everybody on earth.” 

Eventually, the judge ruled in X’s favor, overturning the interim injunction on May 13. 

However, that will not be the end of the matter. On Friday May 11, Prime Minister Albanese announced a parliamentary inquiry into “the impacts and influence of social media on Australia. ”As well as addressing the civic responsibility social media owes to its Australian users “and our society more broadly”, it will also address “the decision of Meta to abandon deals under the News Media Bargaining Code” – that other “world-leading” Australian political activism threatening regulation if big tech companies failed to come to “voluntary” content use agreements to compensate  traditional Australian media companies for revenues lost to online advertising.