The bishop who was allegedly stabbed in his Sydney church last week has written an affidavit for Elon Musk’s X arguing video of the attack should not be censored as ordered by the Australian online safety regulator, the federal court has heard.
Guardian Australia revealed on Wednesday that X was asked by the regulator to remove 65 tweets containing video of the attack, but many of the tweets remain accessible outside Australia.
The Australian federal police have told the court that “there is a real risk” the video could be used to encourage people in Australia to join a terrorist organisation or undertake a terrorist act.
X’s legal representative, Marcus Hoyne, appeared in the federal court for a case management hearing on Wednesday afternoon. He said X would need to provide a substantial amount of documentation to support its case against eSafety’s takedown notice over tweets related to the stabbing of Bishop Mar Mari Emmanuel at the Christ the Good Shepherd Church in Wakeley on 15 April.
This will include an an affidavit from the bishop that the footage should remain accessible.
On Monday night, X was ordered by the federal court of Australia to hide the tweets flagged by the eSafety commissioner because they contained what is deemed to be “class 1” material under Australian classification law. Class 1 material depicts gratuitous or offensive violence with a high degree of impact or detail.
eSafety expected X to have complied with the order by Tuesday night, with the interim injunction in place until 5pm Wednesday.
Counsel for the eSafety commissioner, Christopher Tran, said on Wednesday the current order had not been complied with.
Justice Geoffrey Kennett extended the interim injunction ordering the posts be hidden from view until 5pm 10 May 2024, when the court will hold an injunction hearing.
Hoyne also said the case was “above his paygrade” and X was approaching barrister Bret Walker SC about the case.
Hoyne said there were significant legal issues to do with eSafety’s powers over content overseas to be dealt with:
“I’m not dealing with the political or media issues here. I’m just dealing with the legal issues.”
The current order is not a rolling order for the removal of every tweet containing the video, but refers only to the 65 tweets identified by eSafety. This means future tweets containing the video are not covered by the order. X has said it has geo-blocked access to the 65 tweets in question, making them unavailable within Australia, with the intention of challenging the removal notice in court.
Tests on some of the URLs submitted to X by eSafety detailed in the court documents using a virtual private network connection suggest many are still accessible from other countries, not hidden behind a notice as the court had ordered.
A spokesperson for X told Guardian Australia on Wednesday: “X is in compliance with Australian law, has restricted all the relevant content in Australia and is removing any content that praises or celebrates the attacks.”
An affidavit submitted to the court on Monday by the eSafety commissioner’s general manager of regulatory operations, Toby Dagg, argues that Australians can access the tweets using a virtual private network (VPN) connection, which makes it appear that their IP address is located outside Australia. This is a key component of eSafety’s case against X, according to the affidavit, with investigators accessing the tweets using this method.
Dagg pointed to Musk’s own recent tweets promoting the use of VPNs to access X during his recent stoush with the Brazilian government.
“To ensure that you can still access the X platform, download a virtual private network (VPN) app,” he said in an 8 April tweet.
“Using a VPN is very easy,” he said in another tweet on the same day.
In a 19 April letter to eSafety from X’s lawyer, Justin Quill, responding to the initial removal notice from eSafety, Quill repeated X’s public statement that X does not consider the notice to be “a valid exercise of power by your office” and argued “X Corp has complied with the notice by promptly making the content inaccessible to end-users in Australia with Australian IP addresses”.
The Australian federal police’s acting assistant commissioner for counter-terrorism and special investigations, Stephen Nutt, said in an affidavit to the court that there is “a real risk” the video “will be accessed, downloaded, distributed and reproduced for the purpose of encouraging others in Australia to join a terrorist organisation, or undertake or support the commission of further terrorist attacks”.
He said, for example, the AFP had identified footage of the Christchurch terror attacks being distributed and endorsed by offenders in subsequent terrorism investigations in Australia.
He said it was also the Islamic State methodology to use footage from its terror attacks to recruit members and encourage further attacks.
The interim injunction is set to expire at 5pm on Wednesday. It is expected the court will decide whether to extend the injunction in a hearing before then.
The war of words between Musk and Australian politicians over the ban has continued, with the independent senator Jacqui Lambie deleting her X account encouraging other politicians to do the same.
Musk slammed her in a series of tweets, branding her as an “enemy of the people” in one and stating that she has “utter contempt for the Australian people” in another.
Musk also posted: “The Australian people want the truth. X is the only one standing up for their rights.”
Meta responded to its removal notice by adding the video to its database that automatically detects when users attempt to upload new copies. The United Australia party senator Ralph Babet, however, was temporarily successful in uploading two versions of the video to Facebook for several hours before they were removed.
The communications minister, Michelle Rowland, admitted on ABC’s RN Breakfast on Wednesday that the notices would not capture every upload.
“We know that people are viewing this content still because it is proliferating on other URLs and it’s important that that be reported,” she said. “The reason why this is capable of being disseminated at speed and scale, irrespective of the notices and the compliance to date that eSafety has noticed amongst other platforms, is because it continues to be shared. I encourage all of your listeners who see it, don’t forward it – report it.”