Why Elon Musk must defeat the Australian censors

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A high-stakes fight for free speech is currently playing out in Australia. Julie Inman Grant, the eSafety commissioner, is locked in battle with X boss Elon Musk over internet freedom. Incredibly, Inman Grant wants the power to control the internet not just in Australia, but across the entire world, too.

The trigger for this dispute was a violent knife attack against an Assyrian Christian bishop at a church in Sydney last month. The attack took place during a livestreamed service and, as a result, the footage quickly made its way online and went viral. Almost immediately, Inman Grant demanded that social-media companies take the videos down on the grounds of their graphic content. Under Australia’s Online Safety Act 2021, the eSafety commissioner has the right to request removal for any material depicting ‘revolting or abhorrent phenomena [that] offend against the standards of morality, decency and propriety’.

Of course, whether protecting the sensibilities of the public outweighs the right to be informed is highly debatable. Even the bishop at the centre of the attack says he does not want the footage censored.

Some commentators have noted that the decision to kick up such a fuss about this footage in particular seems suspiciously political. As the alleged perpetrator was Muslim and the incident is being treated as a terrorist attack, there were fears the footage might stoke community tensions. Yet there were no similar attempts to censor videos of the death of George Floyd in 2020, the 2019 police shooting of an Aboriginal boy, Kumanjayi Walker, or footage from the war in Gaza, despite similar risks of sparking unrest.

Nonetheless, Elon Musk initially agreed to ‘geoblock’ the footage in Australia, to prevent Aussie users from seeing it on X. But this wasn’t enough for Inman Grant. She demanded that Musk censor the video for everyone. Apparently, because some Australians use VPNs (virtual private networks) to mask their physical location online, only a global ban could guarantee that Australians wouldn’t see the video. When Musk refused, Inman Grant obtained a temporary injunction requiring X to comply. Numerous Australian politicians piled on by denouncing Musk for defying Australian law. Even the prime minister, Anthony Albanese, called Musk an ‘arrogant billionaire’ for refusing to cooperate.

Needless to say, Inman Grant is not exactly a free-speech crusader. She spoke at this year’s World Economic Forum in Davos about the benefits of internet regulation, and has been pivotal in coordinating the efforts of the Global Online Safety Regulators Network, a loose arrangement of fellow internet regulators. She once appeared at Davos in 2022 to advocate for a ‘recalibration’ of free speech (ie, we should stop treating it as important). Still, her latest intervention is wildly authoritarian, even by those standards.

Thankfully, the eSafety commissioner’s case against Musk hit a speed bump last week, when the Federal Court of Australia refused to extend the injunction on the video. X is free, for now, to continue to allow non-Australian users to view the footage.

A key factor in Justice Geoffrey Kennett’s reasoning was the international ramifications of what the eSafety Commissioner was demanding: ‘Apart from questions concerning freedom of expression in Australia, there is widespread alarm at the prospect of a decision by an official of a national government restricting access to controversial material on the internet by people all over the world. It has been said that if such capacity existed it might be used by a variety of regimes for a variety of purposes, not all of which would be benign.’

Justice Kennett also rightly acknowledged that this would set a dangerous precedent, as Inman Grant ‘would be deciding what users of social-media services throughout the world were allowed to see on those services… The interests of millions of people unconnected with the litigation would be affected.’

The details of this case perfectly illustrate the extreme dangers of allowing unaccountable bureaucrats to police the internet according to their whim. Inman Grant’s vendetta against X is clearly petty and biased. Court documents show that her attempt to censor the video was launched on the basis of just four complaints by members of the Australian public. And as Justice Kennett points out, ‘it is not in dispute that the stabbing video can currently be viewed on internet platforms other than X’. Inman Grant’s decision to target X and Musk specifically was obviously political.

She is certainly not backing down, either. Although the injunction has been lifted, the eSafety commissioner is still trying to impose huge fines on X for noncompliance with her notice. A full hearing is set for late July 2024 and in the recent Australian federal budget, extra funding of $1.4million was allocated to her office ‘to support legal and compliance functions’. So, Inman Grant will be cashed up, at taxpayer expense, to push on with her fight to impose global censorship.

If she is successful, it will set an alarmingly dangerous precedent. If followed in other countries, any internet regulator anywhere in the world could order social-media companies to take down content not just in their own countries, but also globally. Under no circumstances can we allow an unelected bureaucrat in Australia to dictate what the rest of the world can read, hear or watch.

John Storey is the director of law and policy at the Institute of Public Affairs.