Court Rules Australia’s Internet Czar Has No Power to Block Content Overseas

The logo of social media platform X on March 11, 2024. Kirill Kudryavtsev/AFP via Getty Images

The Federal Court has confirmed that Australia’s internet content regulator, eSafety Commissioner Julie Inman Grant, does not have the power to block content overseas.

The commissioner had sought an interim injunction against X Corp to stop the spread of an 11-second video showing the stabbing attack of Bishop Mar Mari Emmanuel at the Assyrian Christ the Good Shepherd Church in Wakeley, western Sydney, which occurred on April 15.

In his ruling, Justice Geoffrey Kennett pointed out that the eSafety order would “literally” have a “global effect on the operations of X Corp, 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.”

Therefore, it was not a “reasonable” action for the commissioner to take, even if it were required of her by law.

To extend the previous injunction would require “strong prospects of success, strong evidence of a real likelihood of harm if the order is not made, and good reason to think it would be effective,” he said.

“At least the first and the third of these circumstances seem to be largely absent.”

He also noted “it is not in dispute that the stabbing video can currently be viewed on internet platforms other than X,” further casting doubt on the effectiveness of injuncting one platform and not others.

While the likelihood of an injunction simply being ignored “is not in itself a reason why X Corp should not be held to account ... it suggests that an injunction is not a sensible way of doing that. Courts rightly hesitate to make orders that cannot be enforced, as it has the potential to bring the administration of justice into disrepute,” Justice Kennett said.

A ban extending outside of Australia would violate the principle of the comity of nations, which involves countries mutually recognising the laws and customs of others.

“What X Corp is to be permitted to show to users in a particular country is something that the ‘comity of nations’ would ordinarily regard as the province of that country’s government.”

Not Many Options Remain for eSafety Commissioner

The ruling leaves geo-blocking as the only legitimate tool the commissioner has for regulating internet content—something that can easily be bypassed using a VPN.

It will also influence the outcome of the case X Corp has brought against Ms. Inman Grant, challenging another global notice banning posts by user Teddy Cook, also known as “Billboard Chris.”

It’s also likely to be cited by X in other countries across the world—especially those that share a legal system with Australia based on the common law—to challenge similar notices issued by other regulators.

Although X questioned whether the video warranted the Refused Classification category as the commissioner claimed, the judge did not canvas that argument, noting that eSafety’s decision was still the subject of another case before the Administrative Appeals Tribunal, “where its merits can be carefully weighed with the benefit of detailed submissions and potentially expert evidence.”

Refused Classification is reserved for material that contains content that is very high in impact and falls outside generally accepted community standards. It cannot be sold, hired, advertised or legally imported in Australia.

Freedom of Speech Concerns

Justice Kennett also noted that the case raised 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,” he said. “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.”

However, the court’s task was only to determine the removal notice’s legal meaning and effect. That was done by construing its language, and the language of the Act, under which it was issued.

“Ultimately, the words used by Parliament determine how far the notice reaches,” he said.

Free Speech Union Reacts

The Free Speech Union of Australia (FSU) reacted to the decision arguing the application for the injunction should have never been brought in the first place.

“The eSafety commissioner is overreaching and behaving more like an activist than a responsible public servant,” said Reuben Kirkham, the Union’s co-director.

Mr Kirkham, who attended the hearing on last week, said he counted 12 lawyers present (seven for X and five for eSafety).

Justice Kennett had reserved his decision on costs, but if eSafety was ordered to pay, taxpayers would have been forced to cover Ms. Inman Grant for “a considerable amount of unnecessary legal costs,” Mr. Kirham said.

Restrictions on Publicising Details Continue

The judge also continued suppression orders issued earlier, covering the URLs at which the video could be found, and the identities of people working for Ms. Inman Grant.

The latter prohibition was necessary, he said, because “in the heated political environment surrounding the removal order and its enforcement, disclosure of the names of individual officers could be prejudicial to their safety.”

After the ruling was published, X Corp owner Elon Musk posted, “Not trying to win anything. I just don’t think we should be suppressing Australian’s rights to free speech.”

X’s Global Government Affairs has so far not commented on the ruling but said in an earlier post that it was “glad X is fighting back, and we hope the judge will recognize the eSafety regulator’s demand for what it is—a big step toward unchecked global censorship—and refuse to let Australia set another dangerous precedent.”