In a welcome development for people who care about liberty, Australia's government suspended its efforts to censor the planet. The country's officials suffered pushback from X (formerly Twitter) and condemnation by free speech advocates after attempting to block anybody, anywhere from seeing video of an attack at a Sydney church. At least for the moment, they've conceded defeat based, in part, on recognition that X is protected by American law, making censorship efforts unenforceable.
A Censor Throws In the Towel
"I have decided to discontinue the proceedings in the Federal Court against X Corp in relation to the matter of extreme violent material depicting the real-life graphic stabbing of a religious leader at Wakeley in Sydney on 15 April 2024," the office of Australia's eSafety Commissioner, Julie Inman Grant, announced last week. "We now welcome the opportunity for a thorough and independent merits review of my decision to issue a removal notice to X Corp by the Administrative Appeals Tribunal."
The free speech battle stems from the stabbing in April of Bishop Mar Mari Emmanuel and Father Isaac Royel at an Orthodox Christian Church by a 16-year-old in what is being treated as an Islamist terrorist incident. Both victims recovered, but Australian officials quickly sought to scrub graphic video footage of the incident from the internet. Most social media platforms complied, including X, which geoblocked access to video of the attack from Australia pending an appeal of the order.
But Australian officials fretted that their countrymen might use virtual private networks (VPNs) to evade the blocks. The only solution, they insisted, was to suppress access to the video for the whole world. X understandably pushed back out of fear of the precedent that would set for the globe's control freaks.
Global Content Battle
"Our concern is that if ANY country is allowed to censor content for ALL countries, which is what the Australian 'eSafety Commissar' is demanding, then what is to stop any country from controlling the entire Internet?" responded X owner Elon Musk.
The Electronic Frontier Foundation (EFF) also argued that "no single country should be able to restrict speech across the entire internet" as did the Foundation for Individual Rights and Expression (FIRE). The organizations jointly sought, and received, intervener status in the case based on "the capacity for many global internet users to be substantially affected."
In short, officials lost control over a tussle they tried to portray as a righteous battle by servants of the people against, in the words of Prime Minister Anthony Albanese, "arrogant billionaire" Elon Musk. Instead, civil libertarians correctly saw it as a battle for free speech against grasping politicians who aren't content to misgovern their own country but reach for control over people outside their borders.
Worse for them, one of their own judges agreed.
"The removal notice would govern (and subject to punitive consequences under Australian law) the activities of a foreign corporation in the United States (where X Corp's corporate decision-making occurs) and every country where its servers are located; and it would likewise govern the relationships between that corporation and its users everywhere in the world," noted Justice Geoffrey Kennett in May as he considered the eSafety commissioner's application to extend an injunction against access to the stabbing video. "The Commissioner, exercising her power under s 109, would be deciding what users of social media services throughout the world were allowed to see on those services."
He added, "most likely, the notice would be ignored or disparaged in other countries."
American Speech Protections Shield the World
This is where the U.S. First Amendment and America's strong protections for free speech come into play to thwart Australian officials' efforts to censor the world.
"There is uncontroversial expert evidence that a court in the US (where X Corp is based) would be highly unlikely to enforce a final injunction of the kind sought by the Commissioner," added Kennett. "Courts rightly hesitate to make orders that cannot be enforced, as it has the potential to bring the administration of justice into disrepute."
Rather than have his government exposed as impotently overreaching to impose its will beyond its borders, Kennett refused to extend the injunction.
Three weeks later, with free speech groups joining the case to argue against eSafety's censorious ambitions, the agency dropped its legal case pending review by the Administrative Appeals Tribunal.
"We are pleased that the Commissioner saw the error in her efforts and dropped the action," responded David Greene and Hudson Hongo for EFF. "Global takedown orders threaten freedom of expression around the world, create conflicting legal obligations, and lead to the lowest common denominator of internet content being available around the world, allowing the least tolerant legal system to determine what we all are able to read and distribute online."
But if the world escaped the grasp of Australia's censors, the country's residents may not be so lucky.
Domestic Censorship Politics
The fight between eSafety and X "isn't actually about the Wakeley church stabbing attacks in April — it's about how much power the government ultimately hands the commissioner once it's finished reviewing the Online Safety Act in October," Ange Lavoipierre wrote for the Australian Broadcasting Corporation.
"The video in dispute in the case against X has been used, in my opinion, as a vehicle for the federal government to push for powers to compel social media companies to enforce rules of misinformation and disinformation on their platforms," agrees Morgan Begg of the free-market Institute of Public Affairs, which opposes intrusive government efforts to regulate online content. "The Federal Court's decision highlights the government's fixation with censorship."
That is, the campaign to force X to suppress video of one crime is largely about domestic political maneuvering for power. But it comes as governments around the world—especially that of the European Union—become increasingly aggressive with their plans to control online speech.
If the battle between Australia's eSafety commissioner and X is any indication, the strongest barrier to international censorship lies in countries—the U.S. in particular—that vigorously protect free speech. From such safe havens, authoritarian officials and their grasping content controls can properly be "ignored or disparaged."
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