Digital giants are not above the law on stopping terror

There are legitimate concerns about how social media giants can protect and assist the anti-social aims of terrorists and other extremists. Two current examples highlight the power of social media to do ill and the refusal of some platforms to take the issue seriously. Elon Musk’s X Corp (formerly Twitter) is attempting to use free speech and jurisdictional arguments to continue making available online video footage of the stabbing of a religious figure in Sydney in what has been declared a terrorist act. Meanwhile, ASIO director-general Mike Burgess has sounded the alarm on the extent to which social media networks are allowing terrorists and criminals to put themselves beyond the reach of the law online.

Describing the internet as the world’s most potent incubator of extremism, Mr Burgess has raised the alarm about end-to-end encryption and called on big tech to establish lawful access solutions that can be applied in very tightly controlled and targeted situations. Without them, Mr Burgess says, unaccountable encryption is like building a safe room for terrorists and spies to go about their business unheeded.

The dispute with Mr Musk involves actual violence that is deemed to be Class 1 content, the same classification as child sexual abuse material and pro-terror content. Home Affairs Minister Clare O’Neil says social media companies are doing “absolutely untold damage” and creating vast problems in mental health. “They are creating civil division, social unrest. Just about every problem that we have as a country is either being exacerbated or caused by social media, and we’re not seeing a skerrick of responsibility taken by these companies,” she said.

On Wednesday, the Federal Court extended an injunction against X Corp requiring the social media platform to hide graphic footage of a Sydney cleric allegedly being stabbed. What is clear is the fact social media giants strive continually to put themselves ahead of the ability of government to make laws that constrain them. This is true financially with the use of offshore arrangements to limit paying tax. And it extends to the way in which companies claim jurisdictional issues put them beyond the reach of national courts.

Properly regulated, social media must be expected to conform to the norms of business behaviour and ethical standards developed for others across many decades. This includes paying for material created by third parties that they use free of charge to make a profit. It extends to co-operating with law enforcement and meeting community standards to expose terrorists and protect society. Publishing video of acts of terror rightly has been considered beyond the pale for traditional publishers. The fact these safeguards are not accepted by digital media is an anomaly that for the good of society cannot stand.

There are significant risks for everyone in the contest being fought between governments and the digital giants. If policymakers are unable to restrain big tech, the fight against terror and organised crime will be much harder. But if policymakers go too far, the freedoms we take for granted on speech and thought may be compromised in forums well beyond the online world.

As a newspaper, we support free speech but not necessarily Mr Musk’s laissez-faire version of it. Unlike X, most media outlets have long-established rules to determine what is acceptable to be put into the public square. There are well-developed processes to co-operate with law enforcement and security agencies.

The global reach of social media demands a level of co-operation between governments, but nations make their own rules. Tech giants may not like it but national sovereignty must mean something, even in the digital world.