Elon Musk’s social media platform X is threatening a legal fight with the Australian government after being issued a take-down notice for X posts, including videos of the recent Sydney stabbings.

Billionaire X Corp owner Mr Musk has angered the government by pledging to fight an order to remove graphic footage of the stabbing attacks from his platform. 

Mr Musk said the eSafety commissioner’s take-down order on the footage was a demand for “global content bans” by Australia’s “censorship commissar”.

X said it would remove the content while challenging the “unlawful and dangerous approach” in court.

But late on Monday, the eSafety commissioner moved first in launching her own legal action, saying X was in defiance of the law because it had only hidden the content in Australia, making it visible to any Australian user who obscured their location using a virtual private network (VPN).

The federal court granted a two-day injunction, ordering X to hide the material worldwide pending further consideration.

But Prime Minister Anthony Albanese said he found it “extraordinary” that X initially chose not to comply with the order to remove the violent videos, and expressed incredulity it was trying to argue its “case”.

“This isn’t about freedom of expression,” the prime minister said. “Social media has a social responsibility”. 

It would not be the first time X, formerly Twitter, has been involved in legal proceedings with the Australian government.

So in the age of the rise of misinformation, disinformation and a reported increase in violent extremism online, can the government control what Australians see online?

Can Elon Musk or X sue the Australian government?

Technically, yes.

Only a few weeks ago, X refused to comply with another removal notice, risking an $800,000 fine from the commission which asked it to remove posts it says harassed an Australian World Health Organization panel member.

X followed up with a statement setting its intention to sue the government over the notice and threat of a fine, noting its right to protect users’ free speech. 

X was also fined by the eSafety Commission $610,500 for failing to cooperate with a probe into anti-child-abuse practices. The matter is now in mediation in the federal court. 

So neither party is a stranger to legal action. 

What can the government do about X’s refusal to take down content?

At the moment, it is doing everything within its current powers through the eSafety commissioner and the Australian Communications and Media Authority (ACMA).

Major digital platforms in Australia are signatories to the DIGI Voluntary Code on Misinformation and Disinformation but X was removed from the code late last year for repeated breaches.

The government’s online safety act gives the eSafety commissioner broad powers to order the removal of material that promotes, incites or instructs people in crime or violence. And, the eSafety commission can usually remove content specifically in Australia by geoblocking it.

On Monday, eSafety argued in court that geoblocking was insufficient in this case and sought for its order to be upheld.

A spokesperson for Communications Minister Michelle Rowland said the government was united with eSafety in its “very clear expectation” that social media companies remove the violent content relating to this most recent stabbing “immediately”.

“Our message to Australians is please do not share or engage with this content. It is distressing and may very well cause harm to vulnerable Australians — including children,” the spokesperson said.

The eSafety Commission also asked Meta to take down the violent videos and it complied. 

The misinformation bill

And it isn’t just violent videos the government is worried about. 

Last week, immediately after the Bondi Junction stabbing attack, a man was wrongly named as the perpetrator by X users and eventually a commercial media outlet. The Sydney university student, Benjamin Cohen, is still considering legal action.

The federal government’s proposal of strengthening the ACMA would give it the power to investigate the systems and processes utilised by digital platforms to address harmful and false information, and impose mandatory rules if their processes were found to be inadequate. But, under the legislation, ACMA would not have the power to demand posts be removed.

The legislation was delayed, and the government will now seek to introduce it to parliament later this year. However, it will need support from the Coalition, which the government hasn’t received previously. 

Following the Sydney stabbings last week, Opposition Leader Peter Dutton on Sunday said his party would support the misinformation laws if they struck the “right balance”.