A win and a loss for X
eSafety’s announcement on Wednesday that it will ‘discontinue’ its action over the Wakeley stabbing video is a win for X. The regulator appears to have conceded that it’s not worth the fight to further restrict access to the video – even with a VPN – on the platform in Australia. It seems action taken in Australia would also have affected users in other countries. This is something X vigorously opposed and on which it had an initial win a few weeks ago when the Federal Court refused to extend a temporary injunction to give effect to eSafety’s application. More on that here.
But the battle is not over. Although eSafety has decided to withdraw its application to the Federal Court to enforce its removal notice, it has renewed efforts to fight X’s parallel action in the Administrative Appeal Tribunal. The platform is separately disputing the decision by the regulator to characterise the Wakeley video as ‘Class 1’ material – on account of its violent, high impact, real-life content with apparent links to terrorism – meaning it’s refused classification and banned in Australia. This is important. Before the implementation of the Online Safety Act, decisions were made by the Classification Board; in recognition of the need for quicker responses in the online environment, the eSafety Commissioner was also given the power to make such decisions. The effect of all this is that public servants and office holders make decisions on community standards, instead of people drawn from the community and appointed to the Classification Board. As I say, the need to make the system more responsive to the online environment is understandable, but the arrangement is about to be tested.
In the meantime, there has been another interesting development in attempts to enforce Australian law on X: a Queensland Tribunal has delivered a decision that will not please the social media platform. Instead of applying the restraints on abusive material set out in the Online Safety Act, the Queensland Civil and Administrative Tribunal has been dealing with an application by AMAN, the Australian Muslim Advocacy Network, to require X to remove material that is said to breach the vilification provisions in Queensland’s Anti-Discrimination Act. And in a decision delivered on 21 May, AMAN won.
The content here pre-dates the Wakeley video. AMAN filed its complaint with the QLD Human Rights Commission back in June 2022, when X was still Twitter and before the company closed its Australian office. AMAN said that content posted on a ‘far-right anti-Muslim conspiracy blog’ – which was commented on and retweeted – contravened s 124Z of the Act because it incited hatred towards, serious contempt for and/or severe ridicule of Muslim people in Queensland on the ground of their religion. It said that the material denigrates and demonises Muslim people, characterising them as an existential threat.
The Commissioner referred the matter to QCAT in March 2023. This decision only addresses certain jurisdictional aspects, and the substantive issues – whether X’s conduct breaches the vilification provisions – are yet to be addressed. There are different strands to the jurisdictional issues, but essentially the tribunal found the cause of the complaint arose in Queensland and, in providing a service to subscribers in Queensland, X had a sufficient presence there and was carrying on business there. X had rejected the claim by AMAN that allowing users in Queensland to download material meant that it ‘engaged in conduct in Queensland’, saying that the conduct occurred at the point of upload in the US. However, the Tribunal applied the principle in Dow Jones v Gutnick from 2002 and a later decision from 2017 involving online games provided by a US company, supporting AMAN’s claim that the harm of the vilification (if it is established, when the full matter is heard) was caused at the point of download in Queensland.
As a foreign corporation, X had also rejected QCAT’s authority to bring it before the Tribunal and to make orders against it. X lost on this aspect as well. However, the decision does place some important limitations around the extent to which the Act applies in other jurisdictions (the ‘extraterritoriality’ aspect). The Tribunal found that the Anti-Discrimination Act does not have the kind of extraterritorial reach that would allow QCAT to make orders in respect of conduct by X that occurs in the US and that has no effect in Queensland.
The QCAT decision is specific to this particular Queensland Act, but the connection with the eSafety matter is interesting: it seems that Australian regulators and citizens who want to take action against international platforms under Australian law could be on safe ground when they apply to have the law enforced in respect of harm to people here in Australia, but could come unstuck if they attempt to give further geographical reach to our local laws.
Derek Wilding, CMT Co-Director
