Elon Musk’s Broken Clock Moment: Standing Up To Australia’s Censorship Overreach

Elon Musk, the self-proclaimed ‘free speech absolutist,’ rarely gets it right when it comes to actual free speech. But he deserves a rare round of applause in his fight against Australia’s global speech injunction.

We’ve had many posts detailing Elon Musk’s somewhat hypocritical understanding of free speech. This included his willingness to fold and give into censorial demands from governments in countries like Turkey and India. In that case, he gave in to demands from the Indian government to block content globally and not just in India.

While this was consistent with Musk’s blinkered view of “free speech” being “that which matches the law,” that’s not how free speech actually works.

If it’s “that which matches the law,” that means the government can censor whoever it wants, simply by passing a law. That’s not free speech by any definition.

So it is always interesting when Musk is actually willing to stand up to government demands, which seems both pretty rare… and slightly arbitrary. He was willing to push back on a Brazilian judge’s attempt to censor content, but only in a case where it supported Brazilian supporters of the authoritarian Jair Bolsonaro, with whom Musk is friendly. As we noted at the time, it was good that he did that, but it kinda put an exclamation point on all the cases where he refused to do so.

Of course, a week later, it was reported (much more quietly!) that Musk and ExTwitter had agreed to comply with the censorship demands.

That takes us to Australia. A similar scenario has been playing out there over the last month or so. At the end of April, a federal court granted an injunction to the Australian eSafety Commissioner, saying that ExTwitter had to “take all reasonable steps” to remove video of a stabbing attack in a church in Wakeley, a suburb of Sydney.

ExTwitter responded by geoblocking the video, so it was not available to users appearing to come from Australia. Of course, geoblocking has its limitations, and the Australian eSafety Commissioner declared that such an approach was not good enough. She said that ExTwitter had to treat the injunction as a global injunction, given that users in Australia might otherwise come across the content via a VPN.

But now the eSafety commissioner has taken the matter to court, arguing X has failed to comply with the law because its interim action was to “geoblock” the content, not delete it.

Geoblocking means the content cannot be viewed in Australia, but this can be circumvented by anyone using a virtual private network (VPN), which obscures a user’s location.

Lawyers for the eSafety Commission told the federal court geoblocking was not enough to comply with the Online Safety Act.

Musk and ExTwitter rightly pushed back on this, though their framing of it being some sort of heroic fight against Australian censorship was a bit overblown. The company was fine blocking the content in Australia. Its only protest was about the global nature of the block. Also, the company had given in to similar global block demands in India.

But still, that’s an important legal fight. In the past, we’ve talked about this issue in the context of a Canadian court that ordered a global injunction against certain Google search results in the Equustek case. That case ended sort of oddly, in that an American court said that Google couldn’t be forced into a global injunction, while a Canadian court said “yes they can.” And… then basically everyone gave up. Some have reasonably argued that the USMCA trade agreement between the US, Canada, and Mexico may have effectively made the Canadian Equustek decision obsolete, due to its effective intermediary liability protections, but I don’t think anyone has tested that yet.

So, now, the fight moved to Australia. The EFF itself weighed in, arguing on behalf of ExTwitter that a global takedown is bullshit.

The Australian takedown order also ignores international human rights standards, restricting global access to information without considering less speech-intrusive alternatives. In other words: the Commissioner used a sledgehammer to crack a nut.

Thankfully, a couple weeks back, the Australian federal court correctly sided with ExTwitter and against the eSafety Commissioner, in saying that it was improper to order a global injunction.

And that’s where things currently stand, though it feels like this discussion is far from over. I appreciate that, in this case, Musk was willing to stand up for some level of free speech and fight back against the global injunction. And, also, shame on the Australian eSafety Commissioner who should know better.

Of course, now don’t be surprised to see more attempts to pressure ExTwitter in Australia. Just last week, the company lost a motion in a different case, meaning that it is subject to the jurisdiction of a Queensland court over claims of discrimination due to alleged “hate speech” on the platform.

Either way, kudos to Elon for standing up for what’s actually right in this one case. I wish he’d do it in most other similar situations, but so far the record on that has been pretty spotty.