April 25, 2024
The eSafety commissioner's bid for the worldwide removal of footage of the Wakeley church stabbing is "silly", Opposition Leader Peter Dutton has said.
The online safety watchdog appeared in court twice this week to argue that its legal order to remove the footage must apply to users anywhere in the world, not just Australia.
But social media platform X is fighting that directive, which the site's owner Elon Musk has labelled "global censorship".
In his first public comments about the court dispute, Mr Dutton said he did not believe eSafety's power to order takedowns extended overseas, "and nor should it".
"You can't influence what happens elsewhere in the world and I think it's silly to try that," he said.
The comments put Mr Dutton at odds with eSafety's argument that it must have overseas reach in order to adequately protect Australians, since freely-available technology can circumvent any Australia-only 'geo-block'.
It also puts him at odds with his deputy Sussan Ley, who said on Thursday she was "not for the actions and the statements of our eSafety commissioner being ignored... we back her 100 per cent."
"I'm really disappointed with the approach of Elon Musk and the way he's taken over this company and it's just a free for all, and it's not fair and it's not right," she said.
While critical of the global dimension of the eSafety commissioner's argument, Mr Dutton also distanced himself from the position taken by X, which has promised to fight even the Australia-based take down order.
"If we have a situation where you've got a cleric being stabbed and that's inciting violence, then the laws are very clear about the ability to take that down," he said.
Last Sunday, Mr Dutton said there was "a bipartisan position" on tougher action against social media companies.
"We've seen some of the comments from Elon Musk... they see themselves above the law. The Australian law here should apply equally in the real world as it does online."
But his latest comments mark a departure in bipartisanship over eSafety's action.
On Monday, a spokesperson for Communications Minister Michelle Rowland said the government was "united with eSafety in our very clear expectation that social media companies remove this content immediately."
And on Wednesday, Ms Rowland declined to "engage in the substantive deliberations" of the matter before the court, but suggested eSafety was "exercising its powers under Australian law... The expectation is that platforms will comply."
Under the Online Safety Act, passed by the Coalition in 2021, the eSafety commissioner can make legal orders for the removal of 'class 1' extreme material online, including footage of terrorist incidents.
The law does not explicitly state whether this should apply to content that is visible to users overseas. Its stated purpose is to protect the online safety of Australians.
But this raises a contested interpretive question: given that Virtual Private Networks (VPNs), which are easily accessible, can be used by any Australian to obscure their location, does the law have to be taken to apply overseas in order to achieve its objective of protecting Australians?
Lawyers for eSafety argued it should be interpreted in this way. Lawyers for X did not outline their full arguments against this proposition, which will be heard when the matter returns to court on May 10, but did argue the claim to global reach was "exorbitant", an argument publicly aired throughout the week by Mr Musk, who suggested it could lead to any government in the world controlling what appears online.
On Wednesday, Coalition national security spokesperson James Paterson said it was "not [Australia's] job to police the global internet."
"I think it is overreach to suggest that these things can't be accessible in other countries. That's for them to decide. If they don't want it in their countries, they should pass laws like we have. It's not up to us to tell them," he said.
But he defended the existence of the powers in a local context, noting they were established under the Coalition.
"We did that in the wake of the Christchurch massacre, where a terrorist broadcasted live his murder of many innocent people in New Zealand. And everyone agreed that kind of content, plus content like ISIS beheading videos, couldn't be broadcast on a television program or a radio program, so it shouldn't be available on the internet... for Australians."
While minister Rowland has declined to engage on the specifics of the dispute before the court, she has emphasised the bulk of eSafety's responsibilities are framed around working with social media companies to remove material, rather than making orders, and that most platforms cooperated.
"eSafety engages on an informal basis and including with law enforcement agencies and with other platforms in order to have this type of content removed. We understand that those other platforms have largely complied with those orders."
She also accepted eSafety could only issue orders for specific URLs and would inevitably be playing catch-up.
"We know that people are viewing this content still because it is proliferating on other URLs and it's important that that be reported... This is capable of being disseminated at speed and scale, irrespective of the notices," she said.
"I encourage [people] who see it, don't forward it, report it."
On Wednesday, Federal Court Justice Geoffrey Kennett has ordered X to hide the identified material worldwide until the next hearing on May 10.
X did not appear to comply with a similar order made on Monday.
