Picking fights with social media giants seems to be ending in tears

Australia’s eSafety Commissioner’s office and the Albanese government just received a further nasty reality check – that wrangling Elon Musk doesn’t come easy. Commissioner Julie Inman Grant joins a conga line of regulators around the world attempting to lasso social media giants, and in particular Musk’s X.

A court setback this week in the eSafety Commissioner’s battle with Musk over showing video posts of the Wakeley church stabbing in Sydney is a blow to the regulator’s powers to cushion people from what it believes to be dangerous online content.

X owner Elon Musk has had a win in the Australian courts.Credit: AP

In a separate war, local media companies including Nine and Rupert Murdoch’s News Corp, and the government, are doing battle with Mark Zuckerberg’s Meta, which has refused to extend deals to pay publishers $70 million a year for content. In doing so, Meta has eschewed a mandatory code of conduct that governs commercial relationships between platforms and publishers.

The government and regulators have plenty of allies in their attempts to rein in the behaviour of social media giants, and the government should be credited as a trailblazer with its conduct code.

It is a global game of Whac-A-Mole, testing sovereign laws against social media giants.

Musk’s X locked horns late last year with the European Commission, which issued infringement notices under its Digital Services Act alleging X was not doing enough to stop disinformation and hate speech.

The US corporate regulator, and even the board of Tesla, have had their issues trying to control Musk. Last week, the SEC was in court attempting to compel Musk to take the witness stand in an investigation of his $US44 billion ($67 billion) takeover of Twitter (now X).

Taking on Musk or Meta’s Zuckerberg has political appeal, even if practical outcomes are mixed.

But it was our own Federal Court that delivered Musk a win on Monday when it decided against extending a temporary order for X to hide video posts of the church stabbing globally.

ESafety Commissioner Julie Inman Grant.Credit: Rhett Wyman

In the days following the stabbing, X agreed to “geoblock” the posts, meaning most Australian users could no longer see them, but it refused the eSafety Commissioner’s removal notice, which would have had a global effect.

In pushing for global removal, the eSafety Commissioner’s office certainly took a big swing, and it was one that Musk unsurprisingly was going to contest.

And the robust support for eSafety provided by the prime minister means that both the Albanese government and Inman Grant have copped a legal black eye.

Musk used one of Australia’s top silks, Bret Walker, SC, to argue the case that banning the video posts online was overreach.

“The idea it is better for the whole world not to be able to see this obviously newsworthy matter, to form their own views on the conduct in question, and consider the views of others on the conduct in question … that notion is in our submission a startling one,” Walker said.

“There should be much more than a ripple of apprehension … that this country would take the approach, if this is the only way we can control what is available to end users in Australia, then yes, we say it is a reasonable step … to deny it to everybody on earth.”

And then there is a second piece to the contest – whether this material was appropriately classified as Class 1, which is reserved for high-impact violence or child abuse.

Taking on Musk or Meta’s Zuckerberg has political appeal, even if practical outcomes are mixed.

Meta chief executive Mark Zuckerberg has faced regulatory pressure in several countries, including Australia and the United States.Credit: AP

Musk has failed to pay a $610,500 fine slapped on X by the eSafety Commissioner over its failure to answer questions on how it removes and tackles child sexual exploitation and sexual extortion.

In October, X was fined for failing to respond to a legal notice demanding tech giants disclose how they were preventing and managing illegal material from being circulated on their platforms.

While the infringement asked for payment within 28 days, the office of the eSafety Commissioner said X had failed to settle the debt. This matter is now heading for the courts.

The battle with social media platforms goes on.

Read more:

• Stabbing video not offensive enough to be removed, X Corp tells court
• Musk widens legal fight with Australia as Labor pushes social media probe
• Stabbed bishop takes swipe at those using attack ‘to serve political purposes’

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