In our last newsletter, Sacha mentioned the dismissal by a Californian court of an attempt by X to stop a non-profit group from gathering data and reporting on the rise of racist, anti-Semitic and extremist content on the platform. Since then, it has been reported that, here in Australia, the platform formerly known as Twitter is taking another stand against a decision of the eSafety Commissioner.
This means there are three clear instances of the platform rejecting the authority or decisions of Australian regulatory bodies.
The first challenge came in the form of X’s refusal to comply with a reporting obligation imposed on it by the eSafety Commissioner in February last year. eSafety had sought information on how X was meeting regulatory expectations about child sexual exploitation and abuse material and activity. When that information was not provided, eSafety issued an infringement fine for over $600,000. When that was not paid, it stepped up the enforcement action and sought a civil penalty order from the Federal Court, which X countered with an application for judicial review. The matter is ongoing.
The second challenge was the refusal to cooperate with industry body, DIGI, on a complaint received under its Code of Practice on Disinformation and Misinformation. DIGI’s Complaints Sub-Committee found that X had failed to provide a mechanism for complaints about mis- and disinformation during the Voice referendum. In November, DIGI withdrew X’s status as a code signatory – meaning it was kicked out of the scheme and no rules about mis- and disinformation apply to X in Australia. This is something Michael wrote about at the time.
Then last week it was reported that X would challenge an eSafety direction to remove a tweet that the regulator said amounted to adult cyber-bullying under the Online Safety Act. The tweet was made in February by Chris Elston, who is Canadian and known online as Billboard Chris, about Teddy Cook, who is Director of Community Health at LGBTI health organisation, ACON. Elston’s post was prompted by Cook’s appointment to a World Health Organization panel. X has said that Elston’s post ‘criticized an individual appointed by the World Health Organization to serve as an expert on transgender issues’. But it actually went much further than criticising the appointment: in the view of eSafety, the post misgendered Cook, was likely intended to invalidate and mock his gender identity, and equated transgender identity with a psychiatric condition. As a result, eSafety formed the view that Elston’s post was intended to cause serious harm and contravened the Act. On March 22 it issued a notice to X requiring it to remove the post. On March 30, X announced that it had done so, but with the intention ‘to file a legal challenge to the order to protect its user's right to free speech’.
This last matter has attracted attention on account of some strong views expressed against the actions of eSafety, even though the targeting of an individual person clearly gives this case a different character from broader arguments about cancel culture and the stifling of free speech. It has also gained attention on account of the potential financial penalty involved, in contrast with some of the penalties imposed for breaches of other communications regulation (see the final item in this newsletter for a link to our new report on this).
In highlighting the resistance of X to Australian regulation, I don’t mean to reject its right to question decisions that it sees as wrong. There are plenty of examples of Australian companies challenging the decisions of regulators such as the ACCC, and more information is needed to reach an informed view on the Elston post. When commercial radio broadcaster Today FM questioned ACMA’s power to make findings that it breached the Surveillance Devices Act in broadcasting the ‘royal prank call’ in 2012, the dispute went to the Federal Court (twice) and the High Court – resulting in a resounding victory for the regulator. But it’s hard not to conclude that something different is going on with X. It certainly appears the company is making a concerted effort to reject Australian and international attempts to craft a regulatory framework for digital platforms. And although attention is focused on the fight with eSafety, X’s attitude towards DIGI’s voluntary, industry-based scheme to discourage disinformation perhaps says more about the contempt with which it views any efforts to restrain its activities.
Derek Wilding, CMT Co-Director