A twist in the free speech legal fight between X and Australia's eSafety bureaucracy

The eSafety vs X case just got messier

The eSafety Commissioner's fight against X over videos of the Wakeley stabbing just got messier, with two new groups granted leave to join the case.

The Electronic Frontier Foundation (EFF) and the Foundation for Individual Rights and Expression (FIRE) have pulled off a rare legal manoeuvre, winning the right to participate in Federal Court proceedings they caught wind of over in the United States.

Court allows terrorist attack vision to stay on X
The Federal Court has chosen not to extend a temporary order for social media company X, formerly Twitter, to hide videos of a Sydney terrorist stabbing globally.

It’s another knock to eSafety, which has been trying to force Elon Musk's company to remove or hide about 65 instances of footage showing a stabbing attack on Bishop Mar Mari Emmanuel since April.

To recap briefly, X initially agreed to geoblock the posts, but refused the regulator's subsequent legal notice, which would have meant global removal.

At that point, all hell promptly broke loose.

Amid an intercontinental slanging match between Anthony Albanese and Elon Musk, the Federal Court granted a temporary injunction, which X ignored, ordering the social media platform to hide the material.

The stalemate lasted more than two weeks until Justice Kennett rejected eSafety’s bid to renew the injunction, after hearing arguments that the Commissioner had overreached.

It was enough of a commotion to attract two American interlopers, the EFF and FIRE, who jointly applied to "intervene" in the matter on behalf of internet users outside Australia.

Their bid has mostly escaped public notice so far, but this week Justice Kennett decided the parties had a right to be heard, despite arguments to the contrary from eSafety.

"It's not automatic and it's quite rare in the Australian context for intervention to be granted," said Kevin Lynch, a partner at Johnson Winter Slattery, the firm representing the two groups.

"Our clients won't be arguing for one side or the other," said Lynch, adding that they're only there to bring an "international perspective".

That perspective happens to overlap significantly with the case being made by X, centring on free speech and the appropriate limits of the Commissioner's powers.

"If an Australian court makes a global takedown order, it might signal to other countries that they can impose similar orders under their own laws," Lynch said.

In other words: if it can happen in Australia, there's nothing to stop it from happening in China, Russia, Myanmar or Iran.

EFF and FIRE now have a seat at the table, in recognition of the fact that this fight "has a major impact upon their interests as freedom of speech advocates", Lynch said.

https://www.abc.net.au/news/2024-05-28/twist-in-legal-fight-between-x-esafety-google-ai-glue-and-rocks/103900668

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