Aussie internet cop can't police the global web: judge

Australia’s relationships with other countries could be damaged if the eSafety Commissioner was able to order the removal of content on social media platforms all around the world, a judge has said.

An order that effectively required the Elon Musk-owned X to block all users’ access to videos of a bishop being stabbed during a live-streamed sermon was unreasonable, Justice Geoffrey Kennett ruled as he refused to extend a Federal Court injunction.

The commissioner sought a temporary injunction in April for X, formerly known as Twitter, to block clips of Bishop Mar Mari Emmanuel being attacked until the court determined whether the social media platform breached any laws.

But Justice Kennett refused to extend the injunction further and it lapsed on Monday afternoon.

The removal notice issued to X would constitute Australian laws extending into the jurisdiction of other nations, leaving it up to the commissioner to decide what social media users around the world could see, the judge said in reasons published on Tuesday.

“The potential consequences for orderly and amicable relations between nations, if a notice with the breadth contended for were enforced, are obvious,” Justice Kennett said.

“Most likely, the notice would be ignored or disparaged in other countries.”

X could reasonably remove all 65 links to the video identified on its platform — as other social media companies had done — and would not breach any laws if it did so.

“However, this is not the test,” Justice Kennett said.

The take-down order required X to “take all reasonable steps to ensure the removal” of the material for Australian users.

But the commissioner argued X had not complied with the notice because the video was still accessible to users in Australia who used a virtual private network to connect to the internet, circumventing any geo-blocking measures.

X argued removing access to these users would require removing access for all users around the world and went beyond what could be considered a “reasonable” step.

Posting on the platform after the judge’s ruling on Monday, X’s billionaire owner said he was “not trying to win anything”.

“I just don’t think we should be suppressing Australian’s (sic) rights to free speech,” Mr Musk wrote.

With the injunction lapsed, the matter is set to return to court on Wednesday for a case-management hearing.