X Wins Major Court Victory Against Australia’s eSafety Commissioner
Another blow to Australia’s eSafety regime as X wins Federal Court challenge.
Elon Musk’s social media platform X just scored another significant legal victory in Australia’s Federal Court after a judge ruled that the company can’t simultaneously be regulated under two separate online safety frameworks.
Justice Elizabeth Raper rejected the eSafety Commissioner’s position that the Relevant Electronic Services (RES) Standard applied to X because of features including its direct messaging and encrypted chat functionality.
The RES Standard regulates relevant electronic services, a category that includes certain services providing instant messaging, SMS, MMS or chat functionality.
eSafety’s current guidance specifically states that a social media service with a messaging feature can also be required to comply with the Relevant Electronic Services Standard for certain types of unlawful material.
The regulator’s own guidance took the opposite position, stating that a service could qualify as a relevant electronic service “regardless of whether” it also met the definition of another type of service under the Act or an industry code.
However, the Federal Court rejected eSafety’s interpretation that a service could fall within both the “social media service” and “relevant electronic service” definitions under the Online Safety Act.
“I accept X Corp’s characterisation of the facts that the RES Standard has been made by the commissioner... as a standard applicable to participants in a different section of the online industry, that are specified... as ‘providers of relevant electronic services’,” the judge said.
“The commissioner’s construction would not sit comfortably with the Act’s structure.
“It would allow the commissioner, as has happened here, to create a standard and apply it to a provider who is already the subject of another industry sector code and effectively bypass the consultative industry-led model.”
As such, the Court ruled that the RES Standard did not apply to X because X fell within the social media services regulatory framework.
X initiated legal proceedings challenging eSafety’s application of the RES Standard to the platform, arguing that the Standard did not apply to its service or, alternatively, was not validly made.
It is unclear if the regulator will appeal the court’s decision.