Internet Law Specialist Dan Svantesson: Michael West Media

The debate continues to rage over Elon Musk’s refusal to take down videos of the church stabbing from X. Musk claims freedom of speech, and the Government wants to censor the world.

Do Australian courts have the right to decide what foreign citizens located overseas view online on a foreign-owned platform?

Anyone inclined to answer “yes” to this question should perhaps also ask themselves whether they are equally happy for courts in China, Russia and Iran to determine what Australians can see and post online in Australia.

This is the problem with global “take-down orders”, an issue we now must confront in light of the Australian eSafety commissioner demanding that social media platform X (formerly Twitter) remove videos of a violent stabbing at a church in Sydney.

X agreed to prevent access to the content in Australia. However, at an urgent federal court hearing the commissioner demanded a full removal, with an interim measure of blocking the posts globally.

Do global take-down orders work?

There can be no doubt that a global take-down order can be justified in some instances. For example, child abuse materials and so-called revenge porn are clear examples of content that should be removed with global effect.

But it is far too simplistic to seek to justify a global take-down order just by saying that any platform operating in Australia must comply with Australian law, as shadow Foreign Minister Simon Birmingham said in a Sky News interview this morning.

After all, international law imposes limitations on what demands Australian law can place on foreigners acting outside Australia.

It is also too simplistic to just focus on efficiency, as was done in the context of so-called geo-blocking – the use of geo-location technologies to block users from a specific location. Attempts to block online piracy sites, for example, have famously been ineffective.

Of course, a court order requiring X to take down certain content globally is more effective than a court order requiring X to geo-block such content so that users in Australia cannot access it.

But that efficiency argument applies equally to Iran’s draconian blasphemy laws or the Chinese laws that make it an offence to compare Chinese leader Xi Jinping to Winnie the Pooh.

Even if X removed the content on a global basis, those Australians who are hell-bent on viewing the footage in question would be able to find it somewhere else online.

In other words, there is no realistic way to fully ensure the content cannot be accessed at all.

Ordering X to use geo-location technologies to block Australians from viewing the content would be sufficient to prevent the general Australian public from coming into contact with the video. Doing so would also show respect for the fact that different countries have different laws.

An unusually poor ‘test case’ for free speech

Elon Musk, the American billionaire owner of X, has chosen to approach the matter as a fight for free speech in the face of “censorship”. Such a move would no doubt gain support among the conspiracy theorists and online trolls in his audience. But for the broader Australian public, this must appear like an odd occasion to fight for free speech.

There can sometimes be real tension between free speech and the suppression of violent imagery. For example, some news reporting from military conflicts may be deemed too graphic by some, while others view it as a necessary tool to illustrate the level of violence being committed.

Here, there are no such complex considerations. There is simply no arguable value in keeping the videos online.

Consequently, while removing the content can be described as censorship, it is hard to understand why anyone would object to this censorship.

After all, not even the staunchest free speech advocates would be able to credibly object to all censorship. (For example, consider the publication of child abuse materials or Musk’s credit card details.)

Musk tweet

The path forward

In the end, we must recognise the internet is a shared resource. All countries, including Australia, should be very careful in how they apply their laws, where it can have a “spill-over” effect impacting people in other countries.

Global take-down orders are justifiable in some situations but cannot be the default position for all content that violates some law somewhere in the world. If we had to comply with all content laws worldwide, the internet would no longer be as valuable as it is today.

We must also start being more proactive in how we regulate the internet. Rushed, reactive lawmaking rarely leads to good long-term outcomes. This is a field in which we need international cooperation – this will take time.

Finally, the platforms must act maturely. While other platforms responded to the eSafety commissioner by swiftly blocking the content, X decided to fight for the “right” to display violent extremism in action.

The fact Musk views this as a suitable battleground for free speech shows that we have a long way to go in finding solutions to the regulation of the internet.

Dan Jerker B. Svantesson specialises in international aspects of the IT society, a field within which I have published a range of books and articles, and given presentations in Australia, Asia, North America and Europe. Dan is a Professor at the Faculty of Law, Bond University.

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