Elon Musk’s X Corp has argued notices ordering the company to remove tweets showing video of a stabbing attack at a Sydney church were invalid, and told a court it was not reasonable for Australia’s eSafety commissioner to expect the 65 posts to be taken down globally.
Last month, X was ordered to hide the posts of the stabbing attack on bishop Mar Mari Emmanuel while he was giving a livestreamed service at the Assyrian Christ the Good Shepherd church in the suburb of Wakeley.
Esafety sought a federal court injunction after X only made the tweets unavailable to Australian users and vowed to challenge the notice.
The barrister representing X, Bret Walker SC, told the court on Friday that X did not believe the notice was valid and was “manifestly inadequate” in lacking detail in the description of the consideration made by the eSafety officer who decided to order the removal of the material, and deemed it to be “class 1” under Australian classification law.
Walker argued the determination referred to a depiction of “crime, cruelty or violence”, which is not something he said would rise to the level that would be refused classification by the classification board in Australia. He said the depiction of such an act of violence, with a camera close to see how it is being done, does not meet that bar.
The barrister for the eSafety commissioner, Tim Begbie KC, told the court the decision document captured key factors the decision-maker considered. Begbie said eSafety had 28 days to put on a full statement of the reasons for the decision through the separate review process X launched in the Administrative Appeals Tribunal.
Begbie argued the case at hand was focused on the enforcement of the Online Safety Act and protecting Australians from harm, not freedom of speech.
He told the court X wasn’t opposed to globally removing content but says the company has viewed it as unreasonable to globally remove the posts because the Australian government wants it to.
He also said the parliament would have been aware of the global nature of the internet when it passed the Online Safety Act.
Walker said X had taken all reasonable steps to prevent Australians accessing the tweets, though it had still been accessible via virtual private network connections for the small subset of people who choose that method of access.
He said it was a “really remarkable proposition” for a country to argue the only way to control what’s available to end users in Australia is “to deny it to everybody on Earth”.
An order to hide the tweets was due to expire at 5pm on Friday but has been extended until Monday pending the court’s decision on the interlocutory order – expected at 10am.
Walker argued before the court that the terms of the order were not compatible with how X’s systems work and there would likely need t be a revision of any order to make the tweets unavailable if the injunction continues prior to a final hearing.
The US-based digital rights group Electronic Frontier Foundation sought to intervene in the case, however eSafety objected arguing that EFF’s position – focused on the potential curtailing of free speech globally under eSafety removal notices – was one “for the ballot box” not the case before the court. Justice Kennett has yet to rule on whether to allow the intervention.
No date has yet been set for the final hearing, with another case management hearing scheduled for Wednesday next week. The week of 10 June was potentially floated as one date, with the case likely to take two hearing days.
