The federal court has refused to extend an injunction against Elon Musk’s platform X over 65 tweets containing video of a stabbing attack at a Sydney church, , before a final hearing in the case.
Last month, X was ordered to hide the posts of the stabbing attack on bishop Mar Mari Emmanuel while he was giving a livestreamed service at the Assyrian Christ the Good Shepherd church in the Sydney suburb of Wakeley.
The eSafety commissioner sought a federal court injunction after X only made the tweets unavailable to Australian users and vowed to challenge the notice. The injunction was due to expire on Monday unless the court extended the order ahead of a final hearing, which is expected in mid-June.
Justice Geoffrey Kennett on Monday refused the application to extend the injunction. Kennett’s reasons were expected to be released later on Monday.
At a hearing on Friday, Kennett heard from X’s barrister, Bret Walker SC, that the wording of the order to hide the tweets was not something the company could technically comply with. At the time, Kennett said he was “troubled” by that information.
The initial setback for the eSafety commissioner’s powers came after Walker told the court on Friday that X believed the notice issued to the platform to remove the tweets was not valid. He said it was “manifestly inadequate” in lacking detail in the decision by the eSafety officer, who deemed the videos to be “class 1” under Australian classification law and ordered their removal.
Walker argued the determination referred to a depiction of “crime, cruelty or violence”, which was not something he said would rise to the level that would be refused classification by the classification board in Australia. He said the depiction of such an act of violence, with a camera close to see how it is being done, does not meet that bar.
The barrister for the eSafety commissioner, Tim Begbie KC, told the court the decision document captured key factors the decision-maker considered and a full statement of reasons will be provided through the separate review process X launched in the administrative appeals tribunal.
Walker said X had taken all reasonable steps to prevent Australians accessing the tweets, although they had still been accessible via virtual private network connections for the small subset of people who choose that method of access.
He said it was a “really remarkable proposition” for a country to argue the only way to control what’s available to end-users in Australia is “to deny it to everybody on Earth”.
Begbie, however, argued X routinely removed content globally, but viewed it as unreasonable when ordered by the Australian government.
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The case returns to court on Wednesday.
Kennett indicated on Monday he will probably decide whether to hear if two international digital rights groups – Electronic Frontier Foundation and the Foundation for Individual Rights and Expression – should be allowed to intervene in the case.
Begbie opposed their intervention, arguing the groups were trying to have a policy debate that was for the ballot box, and not the case at hand.