Published on the 02/05/2024 | Written by Heather Wright

Legal test of government power over tech looms…

An egotist, ‘an arrogant billionaire’ and a ‘narcissistic cowboy’ – the stoush between billionaire Elon Musk and Australia over internet content has stepped up a gear with a fierce war of words, and a showdown in court on the cards next week.

Australian prime minister Anthony Albanese recently dubbed the X boss ‘an arrogant billionaire who thinks he’s above the law, but also above common decency’. after Musk hit out over a initial two-day injunction against the social media platform in relation to graphic posts about the Wakeley church attacks.

“Does the PM think he should have jurisdiction over all of earth?”

Senator Sarah Hanson-Young, Greens spokesperson for communications, went a step further calling Musk ‘a narcissistic cowboy who thinks he can give the middle finger to the Australian government, because for too long we’ve had little to no regulation’.

X was ordered to take down posts which included graphic footage of the stabbing of a bishop and priest by a 16-year-old, who has since been charged with a terrorism offence. The stabbing sparked a riot outside the church.

Videos of the attack circulated online and eSafety commissioner Julie Inman Grant ordered removal the footage, including 65 tweets. X’s response was to geofence the posts, blocking them from Australian IP addresses but leaving them available to viewers elsewhere, including in New Zealand. (Meta complied with the demand.)

In an emergency hearing last week, the commissioner argued that the content shouldn’t be available to any viewers. A two-day injunction forced X to hide the material from all audiences globally. That injunction was later extended, with a full hearing due May 10 and the posts to remain hidden until then.

X says it believes it has complied with the notice issued by eSafety.

Its official Global Government Affairs account says its legal challenge is focused on two key issues, with X arguing that the posts don’t encourage or provoke violence and so should not be banned. Instead it says the content ‘fits within the Australian legislation’s category that permits content that can be reasonably considered as part of public discussion or debate’.

It’s also arguing that no government should have the authority to demand content be removed globally.

“Governments should not be able to censor what citizens of other countries see online, and that regulators should stay within the boundaries of the law.”

Musk, in typical Musk fashion, weighted in more bluntly. “Does the PM think he should have jurisdiction over all of earth?,” he wrote on X. He dubbed the eSafety commissioner, the ‘eSafety Commissar’, saying that “if any country is allowed to censor content for all countries, which is what the Australian ‘eSafety Commissar’ is demanding, then what is to stop any country from controlling the entire internet.”

The legal battle has implications for tech platforms everywhere and will test just how far governments can go with takedown orders – and indeed their power over tech platforms.

The eSafety commissioner says it notices have been issued to overseas services three times in the 2022-23 financial year requiring removal of highly violent or explicit class one material. The financial year also saw nearly 15,000 URLs flagged for removal and to law enforcement, primarily for child sexual abuse material. Recent times have also seen the eSafety commissioner serving legal notices on platforms including X, Meta, Google and Reddit to front up with details about how they’re preventing the spread of terrorist and violent extreme content.

If the May hearing goes in favour of the ban, X could face fines of AU$782,500 for each day it allowed content to be accessible, with the fine backdated to April 16.

The company has already been fined AU$610,500 for failing to cooperate with child sexual abuse material reporting requirements last year, with the commissioner beginning civil action after X ignored the fine.

In March, a US court also went against X, with a judge throwing out a lawsuit by X against the non-profit hate speech watchdog, Center for Countering Digital Hate (CCDH). The judge in that case said it was ‘evident’ Musk’s X corp sued the watchdog because he didn’t like its criticism and wanted to punish it for publications that criticised the platform ‘perhaps in order to dissuade others who might wish to engage in such criticism’.

“It is impossible to read the complaint and not conclude that X Corp is far more concerned about CCDH’s speech than it is its data collection methods,” the judge said.

Meanwhile Australian communications minister Michelle Rowland announced last week that public consultation is underway on how Australia can strengthen its Online Safety Act. This week she announced $6.5 million budget funding for the eSafety commissioner to trial age assurance technology for social media, aiming to protect children from pornography and other ‘high-impact online content’.

Industry codes to prevent children’s access to harmful material, including graphic portrayals of real violence, are also being developed, running in parallel to the trial.

Albanese defended the eSafety Commissioner’s pursuit of Musk, saying she was doing her job to protect the interests of Australians.

“The idea that someone would go to court for the right to put up violent content on a platform shows how out of touch Mr Musk is,” he said during an ABC Breakfast interview.

Hanson-Young meanwhile turned the focus on the algorithms powering the platforms.

“It’s not users who made this horrendous footage go viral over the last week. It’s the algorithms that these companies have kept secret. The business model of these social media giants needs to be scrutinised,”she says.

“We need better regulation. We need to tax them properly. And we need transparency in how they use their algorithms and the data of everyday users.”

X’s actions aren’t without some support however, with X users weighting in on the issue of censorship.