eSafety Commissioner v X Corp

Case [2024] FCA 499

FEDERAL COURT OF AUSTRALIA

eSafety Commissioner v X Corp [2024] FCA 499

File number: NSD 474 of 2024
Judgment of: KENNETT J
Date of judgment: 13 May 2024
Date of publication of reasons: 14 May 2024
Catchwords:

PRACTICE AND PROCEDURE – application for injunction under s 121 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (RP Act) – where respondent issued with removal notice pursuant to s 109 of the Online Safety Act 2021 (Cth) (OS Act) – where interim injunction granted under s 122 of the RP Act requiring compliance with notice – whether interim injunction should be extended – whether real issue to be tried – validity of removal notice – whether removal of content identified in notice for all users on the respondent’s platform internationally a “reasonable step” required by ss 109 and 111 of the OS Act – where “comity of nations” considerations powerful – whether balance of convenience favours grant of injunction – where unenforceability of injunction has potential to bring administration of justice into disrepute

PRACTICE AND PROCEDURE – applications for suppression orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) – whether orders necessary to prevent prejudice to the proper administration of justice – whether orders necessary to protect the safety of any person

Legislation:

Acts Interpretation Act 1901 (Cth) ss 18A, 33
Administrative Appeals Tribunal Act 1975 (Cth) s 28

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 13

Broadcasting Services Act 1992 (Cth)

Classification (Publications, Films and Computer Games) Act 1995 (Cth) ss 7, 9, 9A, 11

Federal Court of Australia Act 1976 (Cth) s 37AF

Online Safety Act 2021 (Cth) ss 3, 12, 106, 109, 111, 162

Regulatory Powers (Standard Provisions) Act 2014 (Cth) ss 79, 82, 111, 121, 122

National Classification Code (Cth) cl 3

Guidelines for the Classification of Films 2012 (Cth)

Explanatory Memorandum, Online Safety Bill 2021 (Cth)  
Cases cited:

BHP Group Ltd v Impiombato [2022] HCA 33; 96 ALJR 956

Bullock v Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464

Malek Fahd Islamic School Ltd v Minister for Education and Training (No 2) [2017] FCA 1377

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323

Ousley v The Queen (1997) 192 CLR 69

Division: General Division
Registry: New South Wales
National Practice Area: Commercial and Corporations
Sub-area: Regulator and Consumer Protection
Number of paragraphs: 68
Date of hearing: 10 May 2024
Counsel for the Applicant: T Begbie KC with CJ Tran
Solicitor for the Applicant:  Australian Government Solicitor
Counsel for the Respondent:  B Walker SC with S Hartford Davis and SJ Hoare
Solicitor for the Respondent:  Ashurst

 

ORDERS

NSD 474 of 2024
BETWEEN:

ESAFETY COMMISSIONER

Applicant
AND:

X CORP

Respondent

ORDER MADE BY:

KENNETT J

DATE OF ORDER:

13 MAY 2024

THE COURT ORDERS THAT:

1.The application to extend the…

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AGLC
eSafety Commissioner v X Corp [2024] FCA 499
Case
[2024] FCA 499
Decision Date

CaseChat Overview and Summary

In the case of eSafety Commissioner v X Corp, the eSafety Commissioner sought an injunction to compel X Corp to remove specific content from its platform, which had been identified in a removal notice issued under the Online Safety Act 2021. The Federal Court was tasked with determining whether the interim injunction should be extended and whether there was a real issue to be tried regarding the validity of the removal notice. The Commissioner argued that the removal of content globally was a reasonable step required by the legislation, but the Court found otherwise, concluding that the reasonable steps did not include global removal of the content as sought. The Court further considered the balance of convenience and noted that the potential global impact of the injunction on X Corp’s operations and millions of its users, coupled with the unenforceability of such an injunction in the United States, where X Corp is based, did not favour extending the injunction.

The Court examined the implications of the comity of nations, finding that compelling global removal would likely be unenforceable and could bring the administration of justice into disrepute. The Commissioner's argument that an injunction could serve an educative or deterrent effect was also rejected, particularly in the context of interlocutory orders. Ultimately, the Court concluded that the Commissioner had not established a prima facie case for the grant of a final injunction in the terms sought. The Court found that the balance of convenience did not favour extending the interlocutory injunction in its current form, given the global impact and the unenforceability of such an order. The Court also found a material non-disclosure by the Commissioner that further undermined the case for extending the injunction.

The Court subsequently refused the application to extend the interlocutory injunction granted on 22 April 2024 and extended on 24 April 2024. The costs of the application were reserved, and the entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011. This decision highlights the complexities involved in cross-jurisdictional enforcement of online content removal orders and the need for careful consideration of the balance of convenience and enforceability in interlocutory proceedings.

Orders

Orders of the court

1. The application to extend the interlocutory injunction granted on 22 April 2024 (as extended on 24 April 2024) is refused.

2. Costs of the application are reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The result is that, read in context and in the light of normal principles of statutory construction, the “reasonable steps” required by a removal notice issued under s 109 do not include the steps which the Commissioner seeks to compel X Corp to take in the present case. Conclusions For these reasons I have come to the view, based on the arguments advanced at this interlocutory stage, that the Commissioner will not succeed in establishing that compliance with the removal notice entails blocking access to the 65 URLs by all users of X Corp. It follows that there is not a prima facie case for the grant of a final injunction in the terms sought.Balance of Convenience The conclusion reached in the previous paragraph makes it unnecessary to express any detailed view as to the balance of convenience. If the considerations relating to the comity of nations (discussed at [48]–[51] above) had not led me to the view that the Commissioner has not made out a prima facie case, the same considerations would have led me to conclude that the balance of convenience does not favour extending the interlocutory injunction in its current (or any similar) form. On the one hand the injunction, if complied with or enforced, has a literally global effect on the operations of X Corp, including operations that have no real connection with Australia or Australia’s interests. The interests of millions of people unconnected with the litigation would be affected. Justifying an interlocutory order with such a broad effect would in my view require strong prospects of success, strong evidence of a real likelihood of harm if the order is not made, and good reason to think it would be effective. At least the first and the third of these circumstances seem to be largely absent. The first is discussed above. As to the third, it is not in dispute that the stabbing video can currently be viewed on internet platforms other than X. I was informed that the video is harder to find on these platforms. The interim injunction is therefore not wholly pointless. However, removal of the stabbing video from X would not prevent people who want to see the video and have access to the internet from watching it. On the other hand, 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; and it would seem to follow that the same is true of any interim injunction to similar effect. This is not in itself a reason why X Corp should not be held to account, but it suggests that an injunction is not a sensible way of doing that. Courts rightly hesitate to make orders that cannot be enforced, as it has the potential to bring the administration of justice into disrepute. It was suggested that an injunction, even if not enforceable, could have an educative or deterrent effect. X Corp’s amenability to education and deterrence might be thought to be open to doubt. In any event, while these are sometimes important considerations in the framing of final relief, I doubt whether they have a proper role in the making of interlocutory orders.A further issue: material non-disclosure

Ratio Decidendi

Legal Principle Established

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