Wed Jun 5

Elon Musk says he won a battle for free speech in court, but it won’t stop the war for social media regulation

Written by Maria O'Sullivan, Associate Professor of Law, Deakin Law School, Deakin University

Australia’s eSafety Commissioner has dropped ^[1] its Federal Court case against X relating to tweets distributing the footage of the Wakeley church stabbing.

In response to the decision, X’s owner, billionaire Elon Musk, tweeted ^[2] “freedom of speech is worth fighting for”.

This case goes to a central question about the operation of Australia’s Online Safety Act ^[3] and the powers of the regulator to remove harmful content.

It will no doubt be viewed with interest by other online safety regulators across the world who are also grappling with these issues. That is, how can governments control the distribution of harmful online material within a country when the internet is global? Do global takedowns unfairly limit free speech? Does “geo-blocking” strike an acceptable balance between restricting harmful content and free speech?

What was the case about?

In April, the eSafety Commissioner issued X with a removal notice instructing it to take “all reasonable steps” to take down videos of the stabbings. A central consideration in issuing the notice was that the New South Wales Commissioner of Police had described the stabbing as a terrorist incident ^[5].

X “geo-blocked” (blocking content depending on location) the video for Australian audiences but refused to impose a wider global ban. The eSafety Commissioner viewed this as a failure to abide by its removal notice, and commenced proceedings ^[6] in the Federal Court.

A blonde woman looks past a man, who's talking.

eSafety Commissioner Julie Inman Grant says she’s focusing on legal action at the Administrative Appeals Tribunal. Mick Tsikas/AAP ^[7]

A central question in the case was whether the geo-blocking of material to stop Australian users accessing the content constitutes the taking of “all reasonable steps” under the legislation when that material is globally available.

In a hearing before the Federal Court in May, the barrister for the Commissioner had stated that in order for X to take “all reasonable steps” there had to be a global ban. They pointed to the ease of buying a VPN (virtual private network) to avoid the domestic takedown.

Why did the eSafety Commissioner drop the case?

The eSafety Commissioner cited ^[8] the prudent use of public funds as one of the reasons for dropping the case, as it also has other litigation in the Administrative Appeals Tribunal.

Although this is a legitimate consideration, it was also obvious the argument for a global ban on the material was a difficult one to make given that it would operate outside Australia.

While Musk has been calling this a victory, it is only the case for a global ban that has been dropped. The removal notice stands pending X’s review ^[9] and it may very well be that the geo-blocking will remain. At least in Australia, posting a video of a stabbing may still be treated as beyond accepted community standards.

A laptop screen showing the X website behind a smartphone screen showing the same website.

X is fighting against attempts to regulate content on its platform. Rick Rycroft/AP ^[10]

While the Online Safety Act allows ^[11] for local authorities to issue an extraterritorial order, whether that extends to issuing a global ban is an open question. Even if a global order can be made under the act, it may not mean much in practice. Countries regulate free speech within their own jurisdictions and take their own position as to what is legitimate free speech and what is harmful content.

A court in another country may take a dim view of a global order and not enforce it in their jurisdiction. But another country may also decide to ban the content under their own laws.

What happens next?

Even though the Federal Court case has been discontinued, the regulation of social media in Australia continues to be a central focus of political and legal debate.

In addition to the litigation between the commissioner and X in other tribunals, there are two major reviews occurring in the next few months: a review of the Online Safety Act ^[12] and a Parliamentary Inquiry into Social Media ^[13]. These will examine some of the legal issues that would have been considered by the Federal Court, such as the regulation of harmful content disseminated over social media.

However, it would have been preferable to have a court ruling on these issues, particularly as there is uncertainty about key parts of the Online Safety Act.

Internationally, online safety is also being tested and debated in other countries. For instance, the UK Online Safety Act has been criticised for unduly limiting free speech ^[15]. These are therefore matters calling for international cooperation.

Looking ahead, it is becoming increasingly apparent the power of tech companies is affecting the ability of safety regulators to constrain their activities. The Australian eSafety Commissioner described ^[16] X as “consistently non-compliant”.

Whatever view is taken of the arguments made in the Federal Court case, the power wielded by tech companies and their ability to circumvent Australian law should be a central concern of the Australian government going forward.