Court rules against X Corp over Australian child abuse safety notice issued to Twitter

A court has ruled on whether the Elon Musk-owned X Corp must comply with an infringement notice issued when the company was called Twitter.

The Federal Court has ruled X Corp has to comply with an Australian child sexual abuse transparency notice issued to the social media giant while it was still called Twitter.

The Australian eSafety commissioner took the matter to the Federal Court after X Corp challenged a $610,500 fine in September 2023.

The fine stemmed from an infringement notice issued by eSafety because X Corp had not provided information about how it was meeting the basic online safety expectations in relation to child sexual exploitation and abuse material and activity on Twitter.

The Federal Court ruled against X Corp. Picture: Alain Jocard / AFP

But X Corp argued the notice did not apply because the company did not exist when the notice was issued. The notice was given to Twitter in February 2023, and X Corp came into being in March 2023.

In a 30-second hearing at the Federal Court in Melbourne on Friday, Justice Michael Wheelahan dismissed the proceeding and order X Corp to pay eSafety’s legal costs.

The court has published its reasons online.

This case is separate from the court matter concerning a video of a stabbing in a Sydney church. X Corp argued against an eSafety take-down notice concerning that video, and the commission withdrew the legal case in June.

X and eSafety have several ongoing disputes in both the Federal Court and the Administrative Appeals Tribunal.

After Elon Musk acquired Twitter Inc, it was merged with X Corp.

In his decision, Justice Wheelahan says in the digital era where childrens’ access to the internet is ubiquitous, the Online Safety Act is an important piece of Commonwealth legislation.

The Online Safety Act notice was provided to Twitter 21 days before it merged with X and ceased to exist.

Where Twitter and X Corp were incorporated was at issue in the case. Picture: NewsWire / Aaron Francis

That notice required explanation of how the company had complied with specified applicable basic online safety expectations from January 2022 to January 2023.

The commission argued the report it received back was absent of various responses, incomplete, or inaccurate.

“In some areas, data is not available or is impacted by other limitations, however Twitter welcomes follow up and engagement that may help elucidate approaches or commitments to safety and service in ways meaningful to the Commission and users in Australia,” an executive wrote back to the eSafety Commission.

Follow up questions were sent to the social media company, but the company replied saying it wanted an extension, and also saying Twitter “has ceased to exist as a legal entity”.

eSafety Commissioner Julie Inman Grant is expected to release a statement about the court win later on Friday. Picture: NewsWire / Martin Ollman

The Commission granted two extensions.

A proceeding X Corp response referred to an attached “final submissions from X Corp. (successor in interest to Twitter, Inc.)”.

But a month later eSafety issued the infringement notice; an itemised fine for various claimed contraventions of the Online Safety Act, totalling $610,500.

Justice Wheelahan assessed the structure of Delaware laws - where Twitter was incorporated - and Nevada laws - where X is registered - in making his decision.

He also found X Corp had breached the terms of the original notice’s reporting deadline.

Secondly, the court found the eSafety infringement notice had failed to identify a “place” where the infringements occurred.

X Corp argued that invalidated the notice, but Justice Wheelahan said the mistake “must be discerned as the result of a process of statutory construction”, and ruled against X Corp in the “place” aspect.