Elon Musk vs eSafety: Legal Experts Warn That ‘Rogue Operators’ Like X Are Unlikely To Win Federal Court Battle

X Corp is unlikely to convince a Federal Court that it can operate above Australian law, and refuse to remove the visibility of violent content to Australian audiences. However, media regulation academics have told B&T eSafety commissioner Julie Inman Grant might face problems in forcing X to issue a worldwide takedown.

Lead image: Elon Musk’s X Corp will battle the Australian eSafety commissioner Julie Inman Grant in Federal Court on May 10 over a takedown order for a violent video.  

Media regulation experts have questioned whether X Corp will succeed in challenging Australia’s Online Safety legislation in a federal court legal battle.

The social media platform, owned by tech billionaire Elon Musk, has taken Australia’s online safety commissioner, Julie Inman Grant, to court to challenge an order it should take down videos of a man violently attacking Sydney bishop Emmanuel Mar Mari with a knife that had been circulating on the platform formerly known as Twitter.

eSafety, the independent regulatory body that oversees online safety, has won an interim injunction to have X Corp remove the posts until a federal court hearing on 10 May.

Legal experts have told B&T that X Corp’s tactics follow a recent pattern of the social media company “thumbing its nose” at Australian law and provide the regulator with its sternest test yet of whether Australia’s online safety regime has teeth against global tech behemoths. When it was introduced a few years ago, it was regarded as one of the toughest in the world.

Professor Derek Wilding, the co-director of the Centre for Media Transition at the University of Technology Sydney and an expert on media regulation, said X Corp has been “increasingly behaving like a rogue operator”.

“X has a pattern of rejecting Australian law and regulation and it has been taken up a notch here,” he said.

“If we’re talking about content that is uploaded by Australians and is available to Australian end users, and X is operating a business here and deriving revenue from this market, then X doesn’t really have an option but to comply with the Australian law, or it can decide that it doesn’t want to operate in this market.”

Sydney University associate professor Timothy Dwyer, who also specialises in media regulation of media and digital platforms, said: “It’s hard to imagine any Australian tribunal or regulator supporting the X position”.

“These events have highlighted a fundamental clash of ideologies. On the one hand, Musk and X are prepared to die in a ditch to defend a violent video circulating on X as a form of ‘free speech’, and at the same time the Albanese Government and their regulators are unequivocally of the view that such an understanding is totally misconceived and self-serving.”

Stan Karanasios, an associate professor of Information Systems at the University of Queensland Business School, said that it is clear Musk is being driven by a belief that he is a “champion of free speech” and that he views Inman Grant’s take-down orders as a form of online censorship.

“The bigger question is how much power does the Australian government have to remove content that is posted and exists on online platforms overseas,” he said. 

“There is a concern of government overreach leading to a scenario where various governments around the world are pulling content and it could lead to the most powerful ones controlling the information that is shared on the internet.

“What is also interesting is that you have had incidents overseas where other platforms, such as Meta, have been accused of pulling down information too easily at the request of certain Governments. It’s an interesting debate and a fine line that needs to be drawn.”

A Pattern Of Pushback

The Wakeley church stabbing videos are not X Corp’s first rodeo when it comes to challenging eSafety’s authority. 

In March, eSafety ordered X Corp to remove posts from Canadian anti-trans activist Chris ‘Billboard Chris’ Elston, who tweeted about Australian queer health expert and UN adviser Teddy Cook: “Individuals like Teddy Cook — a woman who thinks she’s a man and who promotes bestiality, bondage, mutilation and drugs — have no business writing health guidelines for people struggling with various mental health issues”.

Last December, eSafety began civil penalty proceedings in the Federal Court against X Corp for its alleged failure to comply with a ‘transparency notice’ it received in February 2023. The notice requires social media platforms to provide information on how they are meeting Basic Online Safety Expectations in relation to child sexual exploitation and abuse material and activity on Twitter. Other social media companies complied with the request.

Although these examples focus on eSafety notices that relate purely to Australian jurisdiction, Wilding said the Wakeley videos incident has an added layer of complexity because it is not yet clear if the request asks X Corp to takedown content worldwide – as Musk have previously suggested in a tweet – or whether Inman Grant only wants to prevent them from being served to Australian eyeballs.

“I think eSafety could have done a better job explaining what it is seeking and why it seeking these particular orders,” Wilding said.” If these orders go beyond Australia’s jurisdiction, I think there are legitimate questions that X Corp could pose about whether or not an Australian regulator ought to be doing that worldwide.”

‘They Operate As Fiefdoms’

The impasse between X Corp and the eSafety commissioner has hit a flashpoint, involving prickly comments between Musk and Australian politicians, at the same time as the ACCC’s deputy chair Delia Rickard reviews the Online Safety Act, which in October may recommend even tougher rules and responsibilities imposed on social media platforms.

“The key questions, though, will be around liability and enforcement as they always are with these very powerful platforms. They are in effect fiefdoms in their own right, and governments are increasingly realising they need to be reined in,” Dwyer said. 

“They recognise that these corporations are important social, economic and cultural infrastructures, and yet they are disproportionately unaccountable. It’s not about censorship, it’s actually about responsible governance for society.”

Online safety is just one area in the crosshairs of regulators worldwide. This year, nearly half of the world’s population will head to the polls for general elections, and tackling the spread of misinformation and disinformation on social media will be high up the agendas of many democratically elected leaders.

This could compel like-minded nations, such as Australia, the UK and EU, to band together and find cross-border solutions to online safety regulation.

“Governments won’t need much persuasion to find legal and regulatory mechanisms because there are elections underway around the world this year,” Dwyer added. “So that’s a big incentive for them to co-operate with like-minded nation states to find solutions to this problem. 

“Obviously with vulnerable users such as children at risk on social media platforms focusing their minds, the regulatory momentum is going to remain on the agenda. There is mounting pressure on governments to overcome existing roadblocks to international enforcement and citizens are expecting this from their elected leaders.”

The Federal Court hearing between eSafety and X Corp about the Wakeley videos injunction will take place on 10 May.

Although significant, this legal battle between Elon Musk and Julie Inman Grant is just the tip of an iceberg of regulation, lobbying and pushback that is likely to endure in the months and years ahead.