eSafety Commissioner ditches legal fight with X

Denham Sadler
Senior Reporter

The eSafety Commissioner has abandoned its Federal Court case against Elon Musk’s X, just days after two prominent US digital rights groups were approved to intervene in the matter.

In a statement released on Wednesday, eSafety Commissioner Julie Inman Grant announced that the regulator would be discontinuing its Federal Court action attempting to force X to remove posts worldwide that included videos of the Wakeley church stabbing in Sydney in mid-April.

The eSafety Commissioner will instead continue to defend an Administrative Appeals Tribunal appeal made by X against the removal notice.

Julie Inman-Grant
Julie Inman Grant: Australia’s eSafety Commissioner

“I have decided to consolidate action concerning my Class 1 removal notice to X Corp in the Administrative Appeals Tribunal,” Ms Inman Grant said.

“After weighing multiple considerations, including litigation across multiple cases, I have decided this option is likely to achieve the most positive outcome for the online safety of all Australians, especially children.

“We now welcome the opportunity for a thorough and independent merits review of my decision to issue a removal notice to X Corp by the Administrative Appeals Tribunal.”

In a post on X, the company’s Global Government Affairs account said it “welcomed” the discontinuation of the case.

“This case has raised important questions on how legal powers can be used to threaten global censorship of speech, and we are heartened to see that freedom of speech has prevailed,” it said.

The issue stems from a number of posts on X including videos of the Wakeley church stabbing in Sydney. The eSafety Commissioner issued removal notices to X and a number of other social media firms ordering them to take down these posts worldwide.

X geo-blocked posts featuring the videos in Australia but refused to remove them globally, leading the eSafety Commissioner to go to the Federal Court to attempt to enforce the removal notice.

The eSafety Commissioner had also argued that X did not take “all reasonable steps” as required under Australia’s Online Safety Act to ensure that Australians didn’t see the content, such as by preventing those using VPNs from seeing the posts in question.

Earlier this week the Federal Court approved the intervention of two major US digital and civil rights groups, in a legal blow for the eSafety Commissioner. The Federal Court had also refused to extend an injunction on X to hide the posts of the stabbings.

Electronic Frontiers Foundation and the Foundation for Individual Rights and Expression would have likely argued against the eSafety Commissioner’s push to have the power to order the removal of content worldwide based on the Australian scheme.

The case was expected to be heard in the Federal Court at the end of this month.

In her statement announcing the ditching of the legal case, Ms Inman Grant moved to justify the Federal Court attempt.

“Our sole goal and focus in issuing our removal notice was to prevent this extremely violent footage from going viral, potentially inciting further violence and inflicting more harm on the Australian community. I stand by my investigators and the decision eSafety made,” she said.

“eSafety remains committed to exercising the full range of provisions available under the Online Safety Act to hold all tech companies to account without fear or favour, ensuring they comply with the laws of Australia and prioritise the safety and wellbeing of all Australians. We will not waver from this commitment.”

The legal fight will still continue in the Administrative Appeals Tribunal, where X has challenged the eSafety Commissioner’s removal notice.

Australia’s eSafety Act is currently under review, with submissions accepted until next month.

Do you know more? Contact James Riley via Email.

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