Elon Musk’s X v Australia’s online safety regulator: untangling the tweet takedown order
Elon Musk’s X is in a fight with the Australian online safety regulator, the courts have got involved and even the prime minister, Anthony Albanese, has weighed in.
The conflict has descended into a war of words, with Musk calling the eSafety commissioner a “censorship commissar” and Albanese labelling Musk an “arrogant billionaire who thinks he is above the law”.
So, what’s it all about?
Where did it start?
Last week, the eSafety commissioner, Julie Inman Grant, used her powers under the Online Safety Act to issue both Meta and X notices to remove what is deemed to be “class 1” material under Australian classification law within 24 hours. Class 1 material depicts gratuitous or offensive violence with a high degree of impact or detail.
Related: Elon Musk hits back at Australian court order against X images of stabbing
The notices were issued after two stabbing attacks in Sydney: one at Bondi Junction Westfield in which five women and one man were murdered, and the separate alleged stabbing of bishop Mar Mari Emmanuel at a service at the Assyrian Christ the Good Shepherd church in Wakeley. In the aftermath of both events, imagery of the victims and the church attack circulated widely on the two sites, among others.
The notices, however, only relate specifically to the church stabbing, with eSafety determining the images from the Bondi attack did not rise to the level of class 1 material.
eSafety later said Meta had complied with the request, but on Saturday X announced it intended to challenge the notice.
Have these powers been used before?
Yes. The eSafety commissioner said in its annual report that for the 2022-2023 financial year, it issued three notices to overseas services about highly violent or explicit class 1 material.
The regulator tends to use a more informal process for most content. It said in the same time period it flagged 14,975 URLs for removal and to law enforcement, with 99% of those URLs hosting child sexual abuse material.
Why is it focused on the church stabbing content?
The Bondi Junction images did not rise to the level of class 1 under Australian classification law.
It is understood eSafety issued informal notices to the platforms related to imagery from the Bondi attack. One user posted an alert he received from X about three tweets related to the attack, which X had declined to remove after being asked by eSafety.
Guardian Australia has not verified whether eSafety requested the posts be removed because it would not comment on individual cases.
What does X’s policy say about violent content?
X’s rules on violent content state: “You may not post media that is excessively gory or share violent or adult content within live video or in profile or header images”. It also says users “may not threaten, incite, glorify, or express desire for violence or harm”.
Do the posts violate these policies?
Guardian Australia hasn’t seen the posts in question because eSafety does not comment on individual posts, but X has said they do not. It said the posts were commenting on the attack.
In a statement, a spokesperson for eSafety said: “The removal notice does not relate to commentary, public debate or other posts about this event. It only concerns the video of the violent stabbing attack on Bishop Mar Mari Emmanuel.”
How did X respond?
In a statement on Saturday, the company said it was complying with the directive pending a legal challenge, saying it would face fines of A$785,000 a day for not withholding the posts.
In the federal court on Monday, a lawyer representing the eSafety commissioner said X had geo-blocked the posts, meaning people in Australia could not see the tweets, but eSafety has argued this was not sufficient given the posts were still accessible globally.
Why is X fighting the case?
The company has argued that, while it respects the right of a country to enforce its law within its jurisdiction, it does not believe the commissioner has the authority to dictate what users can see globally. X also said the order was “not within the scope of Australian law”, but did not explain beyond that.
Related: Australian court orders Elon Musk’s X to hide Sydney church stabbing posts from users globally
On Tuesday, Musk tweeted that the company is concerned that if any country can censor content for all countries, “then what is to stop any country from controlling the entire internet?”
Has there been a legal challenge?
While X has yet to launch a legal challenge, eSafety launched a federal court case on Monday night and obtained a temporary injunction to force X to hide the posts globally.
As of Tuesday morning, X had not responded.
The company had previously filed a challenge in the federal court against a fine levied by the commissioner last year over X’s failure to respond adequately to questions around its handling of child sexual abuse material.
Although X has promised at least two other legal challenges against eSafety, they have yet to be filed.
What has the Australian government said?
The controversy has led to bipartisan support for the commissioner against X.
The assistant treasurer, Stephen Jones, said the government was prepared to fight a legal challenge, while the opposition leader, Peter Dutton, indicated support for beefing up eSafety’s powers if needed.
On Tuesday, Albanese labelled Musk an “arrogant billionaire” who thinks he is “above the law”.
What if X ignores the notice?
eSafety is now seeking to force X to comply with the notice through the court system.
Beyond the fines and legal sanctions eSafety can seek against X, the commissioner has other options including having links to the content removed from search engines, or the app itself removed from app stores.
The eSafety commissioner has not indicated whether the nuclear option to have X removed from app stores is under consideration.
Why is it a classification claim?
Specific powers were created five years ago after an Australian-born terrorist livestreamed his actions during the Christchurch attack. The legislation empowers eSafety to order the removal of abhorrent violent material, or order internet service providers in Australia to block access to sites hosting such content.
The powers were not enlivened in this instance because the video of the church stabbing was not created by the alleged attacker himself – the service was being livestreamed by the church, and was later ripped and spread across social media.
Does this have anything to do with misinformation?
No. The eSafety commissioner doesn’t have any powers in relation to misinformation. The government is planning to introduce legislation this year that would empower another regulator – the Australian Communications and Media Authority (Acma) – with the ability to ensure the tech platforms take strong action against misinformation on their sites.
The Coalition has been opposed to the bill, but since the events of last week have indicated they could support a revised bill expected later this year.
