eSafety commissioner opposes US free speech groups joining court battle with Musk’s X Corp

Australia’s eSafety commissioner is fighting in court to prevent US free speech activists from intervening in its legal battle to keep footage of an alleged terror attack on a bishop offline.

eSafety commissioner Julie Inman Grant and Elon Musk. Picture: NCA NewsWire

Australia’s eSafety commissioner is fighting in court to prevent US free speech activists from intervening in its legal battle to keep footage of an alleged terror attack on a bishop offline.

The temporary injunction to block Australians from viewing footage of the alleged stabbing off X has been extended to 5pm on Monday, with the Federal Court to rule on whether it will continue the injunction on a temporary basis until a further hearing on Monday at 10am.

Foundation for Individual Rights and Expression (FIRE) and the Electronic Frontier Foundation (EFF) have asked the Federal Court to allow them intervene in the high profile case between eSafety Commission and Elon Musk’s X Corp.

They say they could advance arguments about whether or not the take-down notice to remove live-streamed footage of an alleged terrorist stabbing attack of Mar Mari Emmanuel — first issued by eSafety Commissioner Julie Inman Grant in April — should apply globally.

Represented by Johnson Winter Slattery partner Kevin Lynch, FIRE and EFF argue they would provide “significant assistance” to the court.

“Each of EFF and FIRE are international human rights and media freedom organisations whose area of expertise include the right to freedom of expression or free speech,” their submissions to the court read.

“Considering the outcome of this proceeding has the capacity to affect the global online community, the contribution of each of EFF and FIRE (representing the public interest) should be considered invaluable.”

For the eSafety commissioner, barrister Tim Begbie KC said his client opposed the intervention application.

“(They) are seeking to agitate a policy debate which is for the ballot box not for this proceeding,” he said.

While X complied with a take-down notice, Australian users with VPNs can still watch the attack on the platform and the tech company has refused to totally remove the footage.

It’s one of the first tests of just how much power Australian laws have over powerful tech giants.

For eSafety, Mr Begbie told the court the material posted online showed “actual graphic and shocking moments of that attacker (allegedly) repeatedly and violently stabbing” the bishop.

“This is not a proceeding about a free speech policy,” he said.

“X Corp itself can and does take that stance (to make footage inaccessible) when it wishes to.”

He said “X’s position is a fairly striking one” and referred in its submissions to one of its policy statements that posts must “continue to flow”, evidencing X’s pro free speech stance.

Mr Begbie told the court the commissioner had a short window of time to act when she decided to issue the takedown notice, and was acting on the context of the video which depicted “real violence”.

X Corp was represented by law firm Thomson Geer and barrister Bret Walker SC.

Mr Walker told the court it would be a “matter of real concern” if the only way X could reasonably comply with a takedown order was to remove the content for users worldwide.

He said it was “remarkable” to consider “the only way to control what is available to end users in Australia … (is) to deny it to everybody on earth (the content).”

Earlier, he said a statement of reasons supplied by the eSafety commissioner’s office in support of their take-down notices looked “informal” under the Administrative Appeals Tribunal Act.

“There are strong reasons to doubt the validity of the notice,” he said.

Further, he denied the material was “class one” — reserved for high impact violent material — as the eSafety commissioner deemed it.

Mr Walker also pointed out Mar Mari Emmanuel did not want the footage to be removed from online.

A further hearing in the matter has been set for June.