Quixotic regulation: Australia’s eSafety commissioner capitulates

June 22, 2024
Australia's eSafety Commissioner's instruction to X and Meta in April to remove a violent video was challenged. Graphic: @eSafetyOffice/Green Left

Australia’s eSafety commissioner, Julie Inman Grant, on April 16, smacked X and Meta with legal notices to remove links to a video within 24 hours depicting what her office declared to be “gratuitous or offensive violence with a high degree of impact and detail”.

The video featured a live streamed church service at Sydney’s Assyrian Orthodox Christ the Good Shepherd Church, which was abruptly interrupted by a stabbing assault. The perpetrator was a 16-year-old youth.

Bishop Mar Mari Emmanuel and Rev Isaac Royel were injured.

X Corp’s CEO Elon Musk saw Grant’s order, made under the Online Safety Act, as warranting the title of “censorship commissar”.

While he acquiesced to restricting access to the video in Australia, the world was something else.

The issue wound its way to the Federal Court.

The Commissioner’s case received something of a sinking blow on May 15. Justice Geoffrey Kennett pondered the “potential consequences for orderly and amicable relations between nations, if a notice with the breath contended for were enforced”.

It would, for instance, “be ignored or disparaged in other countries”. In the United States, no court would agree to enforce any relevant injunction requiring X Corp to take down the relevant URLs, numbering 65.

The judge acknowledged that the Online Safety Act covered “acts, omissions, matters and things outside Australia”, but did not stipulate what “all reasonable steps” were in the context of removing material.

“A clear expression of intention would be necessary to support a conclusion that Parliament intended to empower the Commissioner to issue removal notices with the effect for which she contends.”

It followed that she had failed to establish “that compliance with the removal notice entails blocking access to the 65 URLs by all users of X Corp”.

The matter should have ended there, but as proceedings continued through the month, more opposition manifested.

Justice Kennett granted orders on May 27 permitting the Electronic Frontier Foundation (EFF) and the Foundation for Individual Rights and Expression (FIRE) leave to intervene.

The intervention, reasoned FIRE, sought “to focus the court’s attention on how a global takedown order would disregard the strong free speech protections of countries like the US and lend an air of legitimacy to repressive regimes’ efforts to assert control over online content everywhere.”

On June 5, commissioner Inman Grant finally filed a notice of discontinuance in proceedings against X.

The EFF stated with much satisfaction “that the Commissioner saw the error of her efforts”, reasoning that such global take down notices “threaten freedom of expression around the world, creating conflicting legal obligations, and lead to the lowest common denominator of internet content being available around the world”.

Doing so permitted “the least tolerant legal system to determine what we all are able to read and distribute online”.

Very true, except Inman Grant showed few signs of enlightenment.

statement showed that her program of infantilisation and regulation of the internet is ongoing.

“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 decisions eSafety made.”

For Inman Grant, Australians generally accepted that such “graphic material should not be broadcast on television, which begs an obvious question why it should be allowed to be distributed freely and accessible online 24/7 to anyone, including children”.

She expected “reasonable companies to be taking action in relation to this type of content”.

Unfortunately for free speech advocates and information libertarians, the commissioner’s paranoia does have an audience.

Ever since its creation, the Australian Commonwealth has shown a parental obsession with censorship.

Now we have such types as Michael Miller, Executive Corp Australasia Executive Chairman, lecturing us about the need for big tech companies to pay “a social license” should they “want access to Australian consumers”.

Such an encumbering license would permit the federal government “to make the platforms liable for all content that is amplified, curated, and controlled by their algorithms or recommender engines”.

It would also grant the government powers to “ultimately block access to our country and our people if they refuse to play by our rules”.

When an entity such as News Corp gives advice on what should, or should not, be accessible to the public, should sound alarm bells.

Big Tech behemoths have much to answer for — the destruction of privacy, the ruthless monetisation of user data, behavioural modification and hypnotic seduction.

But governments of all hues always cling to the same logic: the public is a dangerous beast, best fed morsels of information rather than the whole buffet. 

Ignorance breeds manageable docility.

[Binoy Kampmark currently lectures at RMIT University.]

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