eSafety Commissioner v X Corp

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.