It was the end of April when we last addressed the stoush between the eSafety Commissioner and X Corp over the banned video of Bishop Mar Mari Emmanuel being stabbed while preaching at the Assyrian Christ the Good Shepherd Church in suburban Sydney. At that time, we were sceptical about the need for what appeared to be a worldwide ban, and we were critical of the lack of detail about the Federal Court injunction sought by eSafety to give effect to its own removal notice. Now there’s a public court file with so much information that perhaps only GenAI could hope to digest. But at least we have a better understanding of what eSafety was seeking – which Justice Kennett describes as its ‘prayer for relief’. Here I cover aspects of His Honour’s decision of 13 May refusing to extend the temporary injunction he granted in April.
It was common ground in the case – and widely publicised – that although X had implemented geo-blocking in Australia, the video could still be accessed using a VPN. eSafety wanted to prevent this remaining form of access. At issue was the obligation imposed on a social media service under the Online Safety Act to take ‘all reasonable steps’ to remove from its service content that eSafety specifies in a removal notice. Removal means ‘the material is neither accessible to, nor delivered to, any of the end-users in Australia using the service’. Kennett J decided that making the video (at the nominated URLs) inaccessible to all users of X anywhere in the world was not a reasonable step in making it inaccessible to users physically located in Australia. As eSafety lost this argument, the injunction was not extended.
But there was another argument that eSafety hasn’t lost – at least for now. This concerns the validity of its decision that the Wakeley video was ‘Class 1 material’ that should be banned as RC (‘Refused Classification’) content. eSafety said the video was Class 1 on the basis that it depicts matters of ‘crime, cruelty and real violence’ in a way that – in the terms set out in the Classification Act – ‘offends against the standards of morality, decency and propriety generally accepted by reasonable adults’ to the extent that it would likely be classified RC. In considering this, Kennett J looked at eSafety’s reference to the designation by the NSW police of the event itself as an act of ‘terrorism’. His Honour found this should not be part of the ‘crime, cruelty and real violence’ aspect, as the Classification Act deals separately with material that advocates or provides instruction for terrorist acts. But he did not see this as necessarily invalidating the notice (as an irrelevant consideration by an administrative decision maker) because eSafety also has an overall discretion whether to issue the notice if basic criteria are satisfied: the terrorism designation ‘… may confer particular meaning on the video in the eyes of some viewers. It may make the video more likely to be used as a recruiting tool or a means of intimidation by terrorist groups.’
The terrorism aspect was something we discussed previously, along with the muddled explanation for why the content was seen to be so serious that it should be banned altogether. And the question of whether the content overall deserved an RC classification remains outstanding because X has also applied to the Administrative Appeals Tribunal for a merits review of eSafety’s decision. X attempted to argue in the Federal Court that the decision to issue the notice was unreasonable because, ‘The stabbing video … was simply not capable of being seen by a reasonable person as class 1 material’ but Kennett J decided that was a matter for the AAT, not for him to decide at this stage. In finding that eSafety’s decision that it was Class 1 was at least open, he also noted that ‘it is certainly arguable that the depiction of violence in the stabbing video is not sufficiently long, detailed or otherwise impactful to warrant an RC classification’.
Remembering that this was only an interim decision on whether to continue the injunction and that the issues will be fully addressed at trial in July – and that the AAT will separately consider the validity of the notice – there’s still a lot to be resolved in a case that could set limits on the regulator’s power.
Derek Wilding, CMT Co-Director