Stabbing video not offensive enough to be removed, X Corp tells court

Footage of a Sydney priest being stabbed should never have been removed from social media because it was not overly graphic and did not glorify terrorism, lawyers acting for Elon Musk’s X Corp have argued in court.

The eSafety Commissioner, which last month ordered the social media platform to take down the video, fought against the intervention of US-based free speech bodies in support of X as its case continued in Federal Court on Friday.

Elon Musk has lambasted the Australian regulator’s attempt to force the video’s removal.Credit: Jordan Strauss

X said it was happy to hide the video for Australians but eSafety also wanted the footage removed for Australians using a server that obscured their location. X said this could be achieved only by hiding videos all over the world, which it argued was outside the Australian regulator’s jurisdiction.

In a new argument from X invoking the notion of a free internet, barrister Bret Walker, SC, claimed that while the video depicted a violent alleged attempted murder, it was not overly graphic and did not meet the legal threshold for it to be forcibly removed.

Bishop Mar Mari Emmanuel has returned to the pulpit since the alleged terrorist attack and said he supported the video remaining online.

Walker argued it was “plain as could possibly be” that a depiction of crime, cruelty or violence such as acts he said were common in films was not sufficiently offensive to be removed.

“It would be a travesty,” Walker added, to suggest the video advocated for others to commit acts of terrorism. Police and eSafety have said the video could be used to radicalise people online.

“The idea that it’s better for the whole world to not see this obviously newsworthy (video), presumably to form their own views”, as the legal matter was ongoing in Australia was a “startling one”, Walker said, arguing eSafety’s statement of reasons for its decision was invalid.

The court extended an interim injunction forcing X to hide dozens of videos of the stabbing until Monday morning, when Justice Geoffrey Kennett will give his judgment.

The commissioner is seeking a permanent injunction and civil penalties, which through the Online Safety Act could be daily fines of up to $782,000. A full trial on the merits of the case will probably occur in June.

The regulator’s demand last month sparked global attention after Musk claimed an Australian “censor” was trying to determine what could be viewed globally, prompting weeks of local debate about online harm and creating a war of words between Musk and Prime Minister Anthony Albanese.

During Friday’s hearing, eSafety accused Musk’s company of hypocrisy in the way it dealt with eSafety’s order.

“Global removal is reasonable when X does it because X wants to do it, but it becomes unreasonable when X is told to do it by the law of Australia,” eSafety’s lawyer, Tim Begbie, KC, said, adding that the social media company’s policies showed it sometimes issued global take-down orders.

Begbie said a quarter of Australians used a VPN server that obscured their location, and noted that Musk had recommended the use of VPNs, proving it was not a trivial matter that X’s move allowed Australian users of VPNs to still see the clip.

On Friday, US-based free speech organisations the Foundation for Individual Rights and Expression (FIRE) and the Electronic Frontier Foundation applied to the Federal Court to become parties to the proceedings.

FIRE, which has received funding from billionaire Charles Koch and Playboy founder Hugh Hefner, and the electronic foundation are backing Musk’s argument that by trying to block the video to all Australians – including those using networks that obscure their location – the watchdog is in effect seeking a global ban outside its jurisdiction. Their intervention was opposed by eSafety.

“[The groups] are seeking to agitate a policy debate which is for the ballot box, not for this proceeding,” Begbie said.

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