Recent legal developments in Australia have clarified the eSafety Commissioner's powers regarding online content, particularly concerning X Corp. While the Commissioner's authority to mandate global content removal has been challenged, her ability to enforce geoblocking within Australia and pursue other legal actions against X has been affirmed.

Federal Court Rules on Content Removal

The Federal Court of Australia recently provided its reasons for refusing to extend an interim statutory injunction against X Corp, which would have required the platform to remove specified links to video content depicting the stabbing of a bishop in Australia. This judgment is an intermediate step in an ongoing dispute between Australia's eSafety Commissioner, Julie Inman Grant, and X regarding a removal notice issued under section 109 of the Online Safety Act 2021 (Cth).

Justice Geoffrey Kennett had withdrawn an injunction requiring X to hide the content globally three weeks before early June. Kennett agreed with X’s argument that a global ban was not "reasonable" and stated that it "clashed with an international concept of the 'comity of nations,' which recognizes that countries’ laws have territorial limits." Kennett wrote that if the removal order were given the reach contended for by the Commissioner, it would govern the activities of a foreign corporation in the United States and every country where its servers are located. He described this as a clear case of a national law purporting to apply to persons or matters over which, according to the comity of nations, jurisdiction properly belongs to another sovereign or state.

However, Kennett upheld the geoblock compromise, which effectively supported the Commissioner's powers to censor content within Australia. The Court's reasoning indicated that the Commissioner's request for X to entirely remove the specified URLs extended beyond the statutory requirements of section 109 of the Online Safety Act, which mandates "all reasonable steps" for removal.

Ongoing Legal Actions and Regulatory Scrutiny

Despite the Federal Court's decision regarding global content removal, the eSafety Commissioner has stated her intention to continue legal action in the Administrative Appeals Tribunal, where X initiated a parallel challenge against her authority. The Commissioner also noted that her office had five other legal cases against X, including issues related to the platform's efforts to combat child sexual abuse material.

In a separate development, an Australian court upheld an order on October 4, 2024, for Elon Musk’s X to pay a fine of 610,500 Australian dollars ($418,000) for failing to cooperate with a regulator’s request for information about anti-child-abuse practices. X had challenged the fine, but the Federal Court of Australia ruled that it was obliged to respond to a notice from the eSafety Commissioner seeking information about steps to address child sexual exploitation material on the platform. Julie Inman Grant stated that if X Corp.’s argument had been accepted, it could have set a precedent allowing a foreign company’s merger to avoid regulatory obligations in Australia. eSafety has also initiated civil proceedings against X due to its noncompliance.

The U.S. House Judiciary Committee has also conducted an investigation into the activities of Australia’s eSafety Commissioner, Julie Inman Grant, highlighting concerns about international state censorship. ADF International, which coordinated a legal case for Chris Elston ("Billboard Chris"), noted a legal win against the eSafety Commissioner regarding a post using biologically-accurate pronouns. Elston's post was deemed "cyber abuse" by the eSafety Commissioner, who ordered X to remove the content. X initially refused and later geo-blocked the post in Australia. Both X and Elston challenged the order.

The Role of eSafety Commissioner Julie Inman Grant

Julie Inman Grant, an American and Australian public servant, assumed the role of eSafety Commissioner in January 2017. Before this, she held various positions in the tech industry, including government affairs manager at Microsoft from 1995 to 2000, head of corporate affairs at Microsoft Australia from 2000 to 2004, Asia-Pacific director of internet safety, privacy and security at Microsoft from 2005 to 2009, and global director for safety and privacy policy and outreach at Microsoft until 2014. In 2014, she became director of public policy in Australia and south-east Asia at Twitter, moving to director of government relations in Asia-Pacific in 2016.

Inman Grant has been questioned by progressive free speech advocates in Australia regarding her campaigns targeting adult content. More recently, conservatives and libertarians have raised concerns about the powers granted to the Commissioner. An Australian libertarian think tank quoted Inman Grant's statements at the World Economic Forum's annual gathering in 2022, where she advocated for "a recalibration of a whole range of human rights that are playing out online, from freedom of speech to the freedom to be free from online violence."

Inman Grant has acknowledged conversations with the U.S.-based, religiously-inspired lobby NCOSE (formerly Morality in Media) and appeared on an NCOSE podcast at the Coalition to End Sexual Exploitation summit in July 2021, shortly after the Australian Parliament passed the Online Safety Act. In November 2021, Australian progressive investigative outlet Crikey published a report on Inman Grant’s focus on banning online pornography.

Key Facts

  • The Federal Court of Australia refused to extend an interim injunction requiring X Corp to globally remove video content depicting a bishop's stabbing.
  • Justice Geoffrey Kennett upheld X's geoblocking of the content within Australia, affirming the eSafety Commissioner's domestic censorship powers.
  • The eSafety Commissioner, Julie Inman Grant, intends to continue legal action against X in the Administrative Appeals Tribunal and has five other cases against the platform.
  • An Australian court upheld a fine of 610,500 Australian dollars against X for failing to provide information on anti-child-abuse practices.
  • Julie Inman Grant has a background in tech policy at Microsoft and Twitter before becoming eSafety Commissioner in 2017.