Big victim or big mouth? Time for Australia to put Elon Musk in his place

Elon Musk’s legal team revealed a curious problem for the billionaire when they told an Australian court on Monday night that they could not get legal instructions because it was 2am on Sunday at their client’s American headquarters.

The remark was revealing because Musk’s social media platform, X, has been operating in Australia for more than a decade, collecting whatever revenue it can make, but now lacks a local office to make the big calls on urgent requests to take down violent posts.

At its heart, this case is about Australian sovereignty over a company that has a deep aversion to government authority. Musk wants money from his Australian customers without having “social licence” to operate as a good corporate citizen.

The political fight is easy to predict because Musk has few friends. Anthony Albanese and Peter Dutton will probably compete to talk tough about X, while independent senator Jacqui Lambie goes one further. She says Musk should be in jail.

Whatever happens, the outcome must be founded on the law. Without that, it will be just another a war of words with an easy target – a billionaire with a big mouth.

Federal Court judge Geoffrey Kennett ruled against X on Monday night, but another hearing is due soon and a final decision is yet to be made. So far, federal eSafety Commissioner Julie Inman Grant has gained the injunction she wanted to force the company to act.

X owner Elon Musk.Credit: AP

X says it is not shrugging its shoulders at Australian law. It claims it has stopped most Australians seeing the violent video of the alleged stabbing of a priest in Wakeley last week – a claim contested by its critics – but argues it is wrong for the federal authorities to ask for a global ban.

The legal argument is full of technical questions, such as the way virtual private networks allow people to dig under the barbed wire that countries try to install at their online borders. The VPN is a wonderful invention for dissidents evading dictators in some countries, just as it helps drug-runners dodge police in others. It blurs the idea of national borders.

The essential point is that Musk has chosen the border he would like to apply when acting on requests to control or remove content. Australia wants him to act on the other side of that line – and nobody can be sure how the court will decide the reach of the law.

Musk has vocal supporters in what he frames as a test of free speech. With trust in political leaders falling over time, along with trust in the media, there are some who would put their faith in Musk before they would rely on a sovereign government. It is now a fixed feature of the Trumpian political era.

Watch out, however, for any argument that says Australia should not dictate terms to the social media giants because that’s what China does. That is classic false equivalence. The eSafety Commissioner is acting with the authority of a federal law passed by a parliament that reflects the will of a free people in a democracy.

One big issue goes well beyond the courtroom in this case: age verification. The eSafety Commissioner said she acted under the Online Safety Act to protect all Australians from extreme violent content, so this case is not about whether children are exposed to damaging material. Even so, the harm to children from social media is an everyday concern.

Facebook and its owner, Meta, give lip service to the idea of preventing young children signing up for content they should not see. So does X. Parents know the checks are weak. The fact is that children are exposed to the kind of violence and pornography they would not have seen before the advent of the iPhone and social media apps.

The violent video of the Wakeley incident is just one example. Almost two decades after the technology arrived, yet another tech titan rages against an elected government that tries to assert a community standard. Musk acts as if this is an outrage.

Musk poses a deceptive question: “Our concern is that if ANY country is allowed to censor content for ALL countries... then what is to stop any country from controlling the entire Internet?” He jumps to the alarmist scenario of total state power, without a moment’s thought about his responsibility for the content he publishes.

Asking a publisher to remove a violent video of a terrorist incident is not an assault on free speech. That test might come, in theory, if Australian authorities tried to take down a political video. This case is not that test.

Asking Musk to act is a fair request. The real outrage is that he thinks he’s a victim.

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