The federal court has refused to extend an injunction against Elon Musk’s Platform X over 65 tweets containing a video of a stabbing attack at a Sydney church, ahead of a final hearing into the case.
Last month,
The eSafety commissioner sought a federal court order after X only made the tweets unavailable to Australian users and vowed to challenge the notice. The injunction would expire Monday unless the court extended the order before a final hearing, scheduled for mid-June.
Judge Geoffrey Kennett on Monday rejected the request for an extension of the court order. Kennett’s reasons were expected to be released later Monday.
At a hearing on Friday, Kennett heard from X’s lawyer, Bret Walker SC, that the wording of the order to conceal the tweets was not something the company could technically comply with. At the time, Kennett said he was “concerned” by that information.
The initial setback to the eSafety commissioner’s powers came after Walker told the court on Friday that X believed the notice issued to the platform to remove the tweets was invalid. He said it was “manifestly inadequate” with details missing from the decision by the eSafety officer, who deemed the videos “class 1” under Australian classification law and ordered their removal.
Walker argued that the determination referred to a description of “crime, cruelty or violence”, which was not something he said would rise to the level that Australia’s classification board would deny classification. He said the depiction of such an act of violence, with a camera nearby to watch it take place, does not meet that requirement.
Counsel for the eSafety Commissioner, Tim Begbie KC, told the court that the decision document captured the key factors considered by the decision-maker and that a full statement of reasons will be provided through the separate review process. initiated in the administrative appeals court.
Walker said X had taken all reasonable steps to prevent Australians from accessing the tweets, although they were still accessible via virtual private network connections for the small subset of people who choose that access method.
He said it was a “truly remarkable proposition” for a country to argue that the only way to control what is available to end users in Australia is to “deny it to everyone on Earth”.
Begbie, however, argued that X routinely removed content globally, but considered it unreasonable when ordered by the Australian government.
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The case returns to court on Wednesday.
Kennett indicated Monday that he will likely decide whether to hear whether two international digital rights groups, the Electronic Frontier Foundation and the Foundation for Individual Rights and Expression, should be allowed to intervene in the case.
Begbie opposed their intervention, arguing that the groups were trying to have a political debate that was for the polls and not for the case at hand.