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An Analysis of the Potential for Australia’s Online Regulator to Limit Americans’ Online Access

Australia’s eSafety Commission is currently engaged in a legal battle with Elon Musk, the owner of X. The outcome of this case has the potential to impact Americans’ online access, as it raises questions about the power and jurisdiction of Australia’s online content regulator.

At the heart of the matter is whether the eSafety commissioner has the authority to impose restrictions on social media platforms, such as prohibiting them from showing certain content globally. The Federal Court has accepted, at least temporarily, that the commissioner has extra-territorial jurisdiction. This means that her decisions on what content should be restricted could be applied to internet users worldwide.

This case is expected to set new precedents for Australian law, particularly regarding the limitations on the eSafety commissioner’s powers. Elon Musk is reportedly seeking legal representation from top Sydney barrister Bret Walker SC, known for his involvement in high-profile cases.

The power of the eSafety office is derived from the federal Online Safety Act 2021, although its role was established by legislation in 2015. The act grants the commissioner broad powers to perform her functions, which primarily involve advising, promoting, consulting, and encouraging measures to improve online safety for Australians. Punishing social media companies is not explicitly mentioned in the act, except for a general provision stating that the commissioner may perform “such other functions as are necessary.”

The act establishes an “Online Content Scheme” that defines objectionable material. However, the determination of what is objectionable is left to the discretion of the commissioner. The act also empowers the commissioner to issue blocking requests and notices for objectionable material and removal notices to social media and internet hosting companies. Non-compliance with these notices can result in fines and penalties.

If the Federal Court determines that the commissioner has the power to restrict social media content globally, individuals can still bypass these restrictions by using virtual private networks (VPNs). VPNs can help users circumvent blocks put in place to limit access. However, some VPNs may be blocked by internet service providers that comply with the eSafety commissioner’s notice, while others may go undetected.

It is important to note that the legislation primarily targets the largest social media platforms and internet service providers. Smaller platforms and ISPs may not be subject to the same level of scrutiny and enforcement.

In conclusion, the ongoing legal battle between Australia’s eSafety Commission and Elon Musk raises significant questions about the power and jurisdiction of online content regulators. The outcome of this case could potentially impact Americans’ online access, as it could establish new precedents for Australian law. While the legislation grants the commissioner broad powers, including the ability to impose fines and injunctions, the effectiveness of these measures may be limited by individuals’ ability to use VPNs to bypass restrictions. Ultimately, the implications of this case extend beyond Australia’s borders, highlighting the complexities of regulating online content in a globalized world.

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