X marks the spot for censorship debate

Federal moves to police and censor social media should be watched closely, argues Morry Bailes.

May 09, 2024, updated May 09, 2024
Photo: Monika Skolimowska/DPA

Photo: Monika Skolimowska/DPA

It’s open warfare between the federal government and Elon Musk.

Mr Musk’s relationship with Australian government seems to vacillate with which of his businesses is in the offing. His renewable energy solves, including giant batteries and EV’s on one side of the ledger will save the planet according to some. But when it comes to X, he morphs into the personification of big tech evil, corrupting the minds of all.

How dare he trample over the Australian government’s right to tell us what we should watch, read and hear, ignoring that it is of course a conscious choice to open a feed from X, and to watch a piece of footage or not.

The offence caused by X this time was its temerity to allow people to view footage of an Assyrian priest being attacked by a radicalised Muslim youth, as happened on April 15. I saw it because the footage, or a link to it, was published digitally by a newspaper.

I admit that at the time I didn’t realise I was causing the Prime Minister and government pain by viewing it. Naively, I just thought it was part of a news story. Just as I watched the ‘shock and awe’ bombing of Iraqis following the invasion by Saddam Hussein’s forces of Kuwait in 1990. As I saw the twin towers struck and fall. And Notre Dame afire and collapsing. The attack by Hamas on Israelis and those of other nations on 7 October, and the Israeli reprisals that followed. I watched because I want to know. I watched because I want to be informed of national and international events. 

I saw and heard those historic events and many more on TV, radio, and now social media. I believe I have a right to know. Equally if I don’t want to know, or hear or see, I don’t have to. Don’t turn on your TV or radio. Don’t use social media. But equally don’t tell me what I can see or not – that is my choice. 

When Chris Bowen, Minister for Climate Change and Energy surfaced, seemingly freewheeling in the Communications portfolio and accusing Elon Musk for failing to adhere with an edict from the Australian government to take down footage from X of the attack on Bishop Mar Mari Emmanuel, he said two things. 

The first was that the Australian government would not tolerate Mr Musk’s misinformation in this matter, and second that Mr Musk would not be above Australian law. Such sentiments have been echoed by other members of the government and the opposition. I would like to analyse those statements and the law. 

What I saw in the footage was a priest going about conducting a church service attacked in a frenzied way by another person with a knife. I wasn’t misinformed. I was informed. There was no misinformation in what I saw. There was information. I didn’t have to watch it. I didn’t have to start the footage. I could have stopped the footage. I didn’t have to see it at all, but I chose to, and I am better informed.

What misinformation is the Minister for Climate Change and Energy referring to? Or has he just confused definitions. Is it that misinformation is a label given to something that in the current febrile atmosphere of western Sydney our federal government would prefer we just not see? Or is it that it tarnishes our reputation internationally? 

If it is joined with something that is unlawful, such as an incitement to violence, or so-called hate speech, that is different. That may be unlawful. But it wasn’t. It was just footage of the attack without any commentary at all. That is what I saw. So how can that be misinformation? 

It’s not hard now to understand the abiding concern amongst many Australians, parliamentarians and the media about the recently proposed Communications Legislation Amendment (Combating Misinformation and Disinformation) Bill, a government bill that did not pass parliament, principally because of a view that it unnecessarily limited freedom of expression in Australia and would lead to a stifling of public expression and debate.

If a government minister describes an uncontested piece of video footage as misinformation we can only imagine what life would have been like for us had that bill passed. 

The second comment is that by publishing footage of the attack, Mr Musk is above Australian law.

The ‘being above the law’ comment was evidently aimed at the recent order of Australia’s eSafety Commissioner to have X Corp and Meta remove material deemed to depict ‘gratuitous or offensive violence with a high degree of impact or detail’ or potentially face fines. That is because unlike the Bondi Junction multiple murder footage which was also in newspapers and social media at the same time, the attack on Bishop Mar Mari Emmanuel was deemed an act of terror.

Therefore, the argument is that neither Australians, nor the rest of the international community are allowed to see the footage on either X or Meta’s Facebook because of a power invested in the eSafety Commissioner by Australian law. 

However, at the time of Mr Bowen’s remarks, that order was being challenged in the Federal Court by X, and unsurprisingly so. 

 As Musk himself has pointed out, what a country does within its own jurisdiction is one thing. To gag X internationally is another level altogether. The status of that challenge is that it is undecided, but whilst it deliberates the court has injuncted X and Meta from publishing the footage worldwide.

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Until a court actually upholds the eSafety Commissioner’s gag order, telling us all what can see and cannot see, we simply don’t know if this is ‘above the law’, however Mr Bowen would seek to characterise it. It is at best an order now contested at law. That’s the height of it. 

To state the obvious, even if the order is lawful, I for one have already seen the footage via a newspaper publication, and be assured young people, who might be our primary concern here, are using neither Meta, nor X. I know, I have teenage kids. Teenagers watch YouTube and TikTok.

Moreover, you will find this vision, and any other accompanying comments, in many other places on the internet. Counsel for the eSafety Commissioner Mr Tran himself said ‘it’s probably out there on other platforms, so it might be said there’s a degree of futility in granting injunction in the circumstances’ leading the judge hearing the matter to observe that ‘the horse has bolted onto other platforms’

So what exactly is the point of all this? What’s the problem with this footage that we cannot see it? Why is it censored? Because albeit non-lethal, it is attack on a member of the clergy by an apparently radicalised Muslim youth. It is argued that as it was an act of terror, we evidently can’t be trusted to view it. It may ferment further discontent. I can only speak for myself but my discontent was only fermented when I heard Mr Bowen saying things that I regarded as untrue.  

Governments, as we know, love to control what information reaches the public. Take Dan Andrews’ government in Victoria for example, which curated public statements and responses during Covid manipulating what people were led to believe about not only the threat of Covid but how best the government of the day ought to handle it. It was a shameful chapter of public life in Australia but stands as a perfect exemplar of why governments want to own the commentary and prevent us getting the facts. 

 The risk here is that the concepts of misinformation and disinformation once they are further expanded and then entrenched in law, as intended by the federal government, become tools to use to permit governments to control what we learn and what we know. Just as Big Brother in Orwell’s 1984 understood the power of superintending entirely the flow of information, hearing Mr Bowen demanding that Musk pull down footage from X because the government and its appointed eSafety Commissioner says so, should concern us all.

What’s more, this campaign has been rolled in with an argument about Meta declining to carry news publication (or not) and other downsides of social media and big tech (of which there are many). But let’s not confuse and conflate those other matters with our right to know and our freedom to express opinions, because that is very much how this looks to an observer. 

To attack social media and big tech on so many fronts at the one time leaves the public overwhelmed and grappling with what exactly is a problem and what is not. What proposed laws do we need, and what laws will go too far and stifle our right to know and to speak? Because in the rush to condemn everything social media we may end up throwing the baby out with the bath water. And once lost, there will not be any chance of getting our rights back, even if gag orders such as we have seen in this instance are in reality next to useless.  

Home Affairs minister Clare O’Neill said in the past week that ‘just about every problem’ in society is being caused or made worse by social media. Is that really so? Or is this just the government warming us up for another tilt at passing the Communications Legislation Amendment (Combating Misinformation and Disinformation) Bill. 

Had the government enacted its earlier legislation, freedom of expression would have been stifled, for people’s reasonable fear of crossing the line and being prosecuted. It is a far better and far fairer society if each individual is the arbiter of what is good and what is rubbish on social media. We are inestimably worse off if we allow the arbiter to be a central government, and its apparatchiks in executive government. That is the worst of all outcomes, as this example demonstrates. The reason is that public decency and public responsibility starts with the individual. 

Had this legalisation passed, rather than wrongly asserting that this footage was misinformation, it may well have been deemed by the government to be so. That is a very bad development for our society, and our democracy. 

As it stands, the eSafety Commissioner’s order was only regarding the actual footage and her published notice expressly says the order ‘does not relate to commentary, public debate or other posts about this event, even those which may link to extreme violent content. It only concerns the video of the violent stabbing attack on at a church in Wakeley’.

 If our government had the legislative ability to decide what was so called misinformation and disinformation it seems likely any accompanying public debate about this incident would have been closed down too.

Rather than be beguiled into thinking this is an issue other than one of freedom of expression, we as a citizenry need to call it what it is. A government that wants to control what we think by controlling what we see. That is censorship pure and simple. We need to defend the right to see, to hear and to know. We need to defend our freedom to express ourselves and oppose implacably any re-introduction of the Communications Legislation Amendment (Combating Misinformation and Disinformation) Bill, because if that passes so, do many of our current freedoms. 

 Morry Bailes is Senior Lawyer and Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and the Law Society of South Australia and a former office-holder of the Liberal Party. 

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