Australia Lost Its First Online Safety Showdown With X Corp

A bronze statue of Lady Justice holding up a set of brass scales, the visual shorthand for the legal test the Federal Court applied to the eSafety Commissioner s 109 removal notice against X Corp — Photo via Unsplash

TL;DR: On 10 May 2024, the Federal Court refused to extend an interim injunction that would have forced X Corp to remove (not just block) 65 posts containing the video of the 15 April 2024 stabbing of Bishop Mar Mari Emmanuel at Christ the Good Shepherd Church in Wakeley, NSW. Justice Kennett held that geo-blocking Australians from seeing the content was a “reasonable step” under section 109 of the Online Safety Act 2021 (Cth). On 5 June 2024, the eSafety Commissioner discontinued the Federal Court case and consolidated the action in the Administrative Appeals Tribunal. The Commissioner described it as the best path to a “thorough and independent merits review” of the removal notice.^[1][2][5]

A note on this article’s original brief

The brief that opened this file (originating with the architecture deep-dive at /articles/government/australia-under-16-social-media-surveillance-architecture-2026) described the case as a 2023 Federal Court ruling on non-consensual intimate imagery, with the citation [2024] FCA 368. That description does not match the public record. The case is eSafety Commissioner v X Corp [2024] FCA 499, decided on 10 May 2024 by Justice Kennett, Federal Court of Australia, NSW District Registry, file NSD474/2024. The subject was the Wakeley church stabbing video, classified by eSafety as class 1 material under section 106 of the Online Safety Act 2021, not non-consensual intimate imagery. The court did not rule in the Commissioner’s favour on the substantive question; the ruling went the other way. A separate follow-on case at [2024] FCA 1159 (4 October 2024, Wheelahan J) dealt with a non-periodic reporting notice and infringement notice, also a different matter. We have written this article to the record, and flagged the architecture article for a follow-up correction pass.

What happened

On the evening of 15 April 2024, a lone assailant attacked and repeatedly stabbed Bishop Mar Mari Emmanuel during a sermon at the Assyrian Christ the Good Shepherd Church in Wakeley, New South Wales. A short video of the attack was recorded on a phone, uploaded to X, and circulated widely.^[1][4]

The next day, 16 April 2024, the Office of the eSafety Commissioner issued X Corp with a removal notice under section 109 of the Online Safety Act 2021 (Cth). The notice identified 65 URLs containing the video and required X Corp to take “all reasonable steps” to remove the content.^[2][3]

X Corp geo-blocked the URLs. Australians with an Australian IP address could no longer reach the posts. The posts themselves stayed online for the rest of the world. X Corp’s position was that geo-blocking, not worldwide removal, was the proper read of “all reasonable steps” under section 109.^[1][2]

Other major platforms did remove the content. The Commissioner’s 5 June 2024 statement specifically names Meta, Microsoft, Google, Snap, TikTok, Reddit and Telegram as having complied with the notice or with their own equivalent rules. X Corp also removed a separate compilation video X had itself produced that bundled the Wakeley footage with two other violent incidents, once notified.^[5]

The law the case turned on

Section 109 of the Online Safety Act 2021 (Cth) is the section that lets the Commissioner demand removal of class 1 material from a “relevant electronic service,” a “designated internet service,” or a “hosting service.” It sets out three tests. First, the Commissioner must be satisfied the material is class 1 material. Second, the material must be accessible by end-users in Australia. Third, once the notice is issued, the service provider must take “all reasonable steps” to ensure removal.^[2][7]

Class 1 material is defined in section 106 of the Act. It either carries an RC rating from the Classification Board or, if unclassified, is material that depicts, describes or expresses “crime, cruelty and real violence in such a way that it offends against the standards of morality, decency and propriety generally accepted by reasonable adults.” eSafety did not seek a Classification Board rating for the Wakeley video. It invoked the unclassified pathway under s 106(1)(b)(iii), designating the content as “likely to be classified RC.”^[7]

The civil-penalty lever sits in section 121 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth), which the Online Safety Act borrows by cross-reference. For a body corporate, the maximum civil penalty is currently $782,500 per day of non-compliance.^[2][4]

Court fight: April to May 2024

eSafety applied for an injunction under section 121(2) of the Regulatory Powers Act. Justice Kennett granted an ex parte injunction on 22 April 2024 and extended it on 24 April, in effect to 5pm on Friday 10 May 2024.^[2][4][3]

At the interlocutory hearing on 10 May, the Commissioner asked the court to make a declaration that X had failed to comply with the removal notice and to order one of four specific remedies: take the material down, restrict discoverability so only the author could see it, hide it behind a permanent digital label, or remove it from search results and feeds on X. The court declined to extend the injunction further. His Honour held that geo-blocking satisfied the “all reasonable steps” test, and that forcing X to do more would push the removal notice well past what section 109 was drafted to do.^[1][2]

The Commissioner’s 13 May 2024 statement said the court “today did not grant the eSafety Commissioner’s application to extend the interim injunction.” The next status hearing was listed for 15 May 2024 at 9:30am.^[3]

What Justice Kennett actually said

Justice Kennett’s reasons are a careful line-drawing exercise between what the statute asks for and what the Commissioner wanted.^[2]

At paragraph 40 of his reasons, his Honour framed the policy stakes and then drew back to the statutory task:

“The policy questions underlying the parties’ dispute are large. They have generated widespread and sometimes heated controversy. Apart from questions concerning freedom of expression in Australia, there is widespread alarm at the prospect of a decision by an official of a national government restricting access to controversial material on the internet by people all over the world. It has been said that if such capacity existed it might be used by a variety of regimes for a variety of purposes, not all of which would be benign. The task of the Court, at least at this stage of the analysis, is only to determine the legal meaning and effect of the removal notice. That is done by construing its language and the language of the Act under which it is issued. It is ultimately the words used by Parliament that determine how far the notice reaches.”

At paragraph 50 of his reasons, his Honour named the territorial limit the Commissioner was trying to draw past:

“If given the reach contended for by the Commissioner, the removal notice would govern (and subject to punitive consequences under Australian law) the activities of a foreign corporation in the United States (where X Corp’s corporate decision-making occurs) and every country where its servers are located; and it would likewise govern the relationships between that corporation and its users everywhere in the world. The Commissioner, exercising her power under s 109, would be deciding what users of social media services throughout the world were allowed to see on those services. The content to which access may be denied by a removal notice is not limited to Australian content.”

His Honour accepted that the Act’s objects were drawn broadly, that “end-users in Australia” should not be read narrowly, and that the phrase was meant to capture any user physically in Australia, however they connect. The argument that worldwide takedown was not a step “reasonable” to require X to perform to make the URLs inaccessible to Australian users was, his Honour wrote, “powerful.” If section 109 were read to compel that, it would clash with what is sometimes called the comity of nations.^[2]

His Honour’s decision ended with a pointed invitation to Parliament. The reason the case had to be argued at all, he noted, is that section 109 does not say what “all reasonable steps” actually means. That, by implication, is work for the legislature, not the courts.^[1][2]

Why eSafety walked away

On 5 June 2024, the Commissioner published a statement announcing the Federal Court action had been discontinued and the matter was being consolidated in the Administrative Appeals Tribunal. The Commissioner framed the move as a strategic choice, not a concession:^[5]

“Today I have decided to consolidate action concerning my Class 1 removal notice to X Corp in the Administrative Appeals Tribunal. After weighing multiple considerations, including litigation across multiple cases, I have considered this option likely to achieve the most positive outcome for the online safety of all Australians, especially children.”

The statement defended the decision to issue the notice. It pointed out that X Corp, on its own admission, removes 40,000 items of content a year for illegality, that X had already globally removed the separate compilation video, and that other major platforms had removed the original on request. The Commissioner was also pointed about the gap the case exposed:^[5]

“Most Australians accept this kind of graphic material should not be on broadcast television, which begs an obvious question of why it should be allowed to be distributed freely and accessible online 24/7 to anyone, including children.”

The AAT path is merits review, not judicial review. It lets the Tribunal re-decide whether the original removal notice should have issued, on the evidence and on the statute. eSafety’s own list of proceedings now lists the matter (NSD474/2024) as “Discontinued,” with judgments (if any) available on the Federal Court website for the prior interlocutory steps.^[6]

The sovereignty question that the ruling did not decide

Justice Kennett’s judgment is narrow. It resolved the interlocutory fight about whether to extend an interim injunction, and held that geo-blocking satisfied the section 109 standard for the time being. The wider question, whether a section 109 notice can be drafted to compel worldwide takedown of a post from a US-incorporated platform, is not foreclosed.^[2]

That is the question that every regulator in a similar position will want answered. Australia’s Online Safety Act, the United Kingdom’s Online Safety Act 2023, the European Union’s Digital Services Act, and Canada’s proposed online harms framework all have versions of this power. If “all reasonable steps” means geo-blocking, the global-reach lever is largely symbolic. If it means worldwide takedown, the test cases will go to the High Court and the conflict-of-laws questions will land.^[2][8]

eSafety’s 5 June 2024 statement also pointed to the Online Safety Act review that was then open for public submissions, and to the Senate select committee inquiry into social media. The Commissioner is on the record that the Wakeley case is part of why both processes exist. His Honour’s invitation to Parliament to define “all reasonable steps” has now been taken up.^[5][2]

What to watch next

The AAT merits review

The Administrative Appeals Tribunal will re-decide the original section 109 notice on the merits. The Federal Court’s interlocutory view that geo-blocking is enough does not bind the AAT, but it is the most-recent judicial read of the statute and the AAT will have to engage with it.

The Online Safety Act review

The statutory review of the Online Safety Act 2021 is the venue where “all reasonable steps” will either be defined, or the failure to define it will be acknowledged. Submissions to that review set the ground for any amendment.

The X Corp reporting-notice case

A separate Federal Court proceeding, X Corp v eSafety Commissioner (VID 956 of 2023, judgment 4 October 2024, Wheelahan J),^[8] dealt with a non-periodic reporting notice and the validity of an infringement notice. That case is now under appeal (VID 1186 of 2024) and is the parallel litigation stream worth tracking.

The international rule-of-law beat

Justice Kennett’s comity-of-nations reasoning is the legal hook other countries’ courts will quote. Watch for the same argument in any UK, EU, or Canadian case that tests the same power.

The bottom line

Australia’s first test of its online-safety removal power ended not with a win for the regulator, but with a question back to Parliament. The Federal Court held that geo-blocking the 65 URLs was a reasonable step under section 109. The Commissioner consolidated the case in the AAT, where the merits of the original notice are now the live question. The eSafety regime is not in retreat, but its reach is now visibly limited by what the statute actually says.

For platforms, the practical lesson is the one X Corp drew: an Australian removal notice that can be satisfied by geo-blocking is not a takedown order for the rest of the world. For regulators, the lesson is that “all reasonable steps” is the phrase that needs to be made operational, either by the AAT or by Parliament. For the rest of us, the lesson is that the most-watched online-safety fight in 2024 ended without anyone winning the war.