A notice issued to Twitter over its tackling of child sexual abuse material did not account for the company “ceasing to exist” when Elon Musk’s X Corp merged with Twitter in March 2023 soon after, X Corp has said, in a landmark case challenging a penalty from the Australian online safety regulator.
X took the eSafety commissioner to court last year challenging the $610,500 fine issued against the company over failing to answer questions in the notice, with the case being heard in the federal court on Monday and Tuesday this week.
The eSafety commissioner, Julie Inman Grant, issued legal notices to what was then Twitter, among others, in February last year, under the Online Safety Act asking the company to answer questions on what it was doing to crack down on child sexual abuse material on its platform.
Inman Grant told Guardian Australia at the time the fine was issued that, despite giving the company extensions in time to respond, Twitter had left some questions “totally blank, to obfuscate [from providing] inaccurate information.”
In the federal court on Monday, Bret Walker SC, acting for X, said the original notice that led to the fine was served to what was then Twitter Inc, which merged with X Corp in March of 2023.
“Everyone agrees that Twitter ceased to exist. That’s the critical point,” he said.
Walker said the section of the Online Safety Act regarding the notices being issued did not account for who bears responsibility for the notice, should the organisation it was issued against cease to exist.
“The point about a notice is that the time ticks from the day of issue, and the statute, perfectly sensibly, does not provide for the cessation of existence of the person to whom it is directed as to a continued operation of that notice thereafter,” he said.
Counsel for the eSafety commissioner did not address this point on Monday. The court will hear from two expert witnesses on Tuesday who Walker indicated would have opposing views on whether whether the responsibility for the notice transferred to X Corp.
The case will be a test of the commissioner’s powers under the Online Safety Act, including the issuing of notices for platforms to account for how they’re meeting the government’s basic online safety expectations.
Inman Grant has issued dozens of these notices to providers, including most recently last week, when YouTube, Facebook, Instagram, TikTok, Snap, Reddit, Discord and Twitch were asked how many children they have on their platforms, and what methods they use to assure the age of those signing up.
eSafety has commenced a separate civil penalty proceeding against X in relation to its alleged non-compliance with the notice, the office of the eSafety commissioner said on Monday. That proceeding is on hold until the federal court case has been determined.
Walker flagged so far that only one of the notices issued under the act was issued to the new X Corp entity. Inman Grant told the ABC last month that X currently has seven ongoing legal cases with her office.
The hearing also comes as the Albanese Labor government is reviewing the Online Safety Act, with a report due to government at the end of October.
