X’s three court wins against eSafety signal enforcement difficulty
Australia’s eSafety commissioner holds legal levers to limit Australians from seeing the planned US livestream of the execution of Fort Hood shooter Nidal Hasan, but the regulator’s history of platform legal challenges and political attacks from Trump-aligned US figures leaves no easy path forward.
US Defence Secretary Pete Hegseth announced last week that the military execution of Hasan, the Fort Hood shooter, would be livestreamed when carried out in early December. The Greens have called on eSafety commissioner Julie Inman Grant and the Albanese government to ensure the event – if it goes ahead and is livestreamed – is not seen by Australians on television or their devices.
Under the Online Safety Act, the eSafety commissioner can order platforms including Facebook, Instagram and X to block Australians from accessing posts containing content deemed “refused classification” under Australian classification law. That classification has typically been applied to online content from terror attacks and other terror-related material, but it could be applied to clips of the public execution after the fact.
Some companies, including Meta, will probably apply their own terms of service and prevent distribution of the video. Others have taken the position that such content should remain on their platforms. X has not indicated whether it would allow such videos, but the platform owned by Elon Musk has a long history of legal challenges against eSafety on this category of content.
In 2024, X successfully kept footage of the stabbing of Sydney bishop Mar Mari Emmanuel in his church available to Australians, with the platform recruiting Emmanuel to argue before the court to allow the footage to stay online. Most recently, X won an appeal to have the classification of video of the assassination of rightwing influencer Charlie Kirk at Utah Valley University downgraded from RC to R18+, after eSafety had ordered the removal of clips of the assassination last year. The platform also won a similar case to reduce the rating of footage of the attack on Iryna Zarutska on a train in Charlotte, North Carolina in August last year down to R18+.
Under laws passed by the former Coalition government in 2019 in the wake of the Christchurch terror attack, the eSafety commissioner can also issue takedown notices to websites hosting footage that depicts “actual violent crime such as murder, attempted murder, rape, torture.” The laws were developed with the view to blocking streams of terror attacks, but could have wider applications for state-sponsored violence such as executions.
The eSafety commissioner last used these takedown powers in 2022 to order websites to remove videos and related materials from the Buffalo, New York terrorist attack. The commissioner can also declare an “online crisis event” and order internet service providers including Telstra and Optus to block sites hosting the content, but this power has not been used. ISPs complied with eSafety’s request to block sites hosting the Christchurch attack in 2019 before parliament had passed the laws.
A move to block the execution livestream could lead to a domestic firestorm among conservative media as well as a potential diplomatic incident, particularly if focused on large social media platforms or potentially sites owned by the Trump administration. The regulator has not used the “online crisis event” power before.
eSafety is also currently testing the law against messaging platform Telegram, which the regulator has alleged failed to remove some content that included executions conducted by terrorist groups. The eSafety commissioner is seeking fines of up to A$54.6 million against Telegram, with the hearing set down for February next year.
The political dimension adds another layer of complexity. Inman Grant’s term ends in January 2027, and she has previously said she will not seek another term. Trump-aligned politicians including Republican congressman Jim Jordan have labelled Inman Grant a “zealot for global takedowns” and claimed she has threatened American speech on social media platforms. Inman Grant has rejected the claims, and she declined an invitation to speak before a US congressional hearing at the time.
If Inman Grant bears responsibility for decisions around whether Australians can see the livestreamed execution, it will likely provoke a new round of criticism. The regulator has not indicated what it would do in the event the execution is livestreamed, and the history of legal challenges and attention from the right of US politics suggests no easy solution in the eSafety toolkit short of ministerial intervention.