The social media platform X is expected return to the federal court today to argue why it should not have to hide footage of the Wakeley stabbing.
As it stands, the platform is in defiance of orders from both the online safety regulator and the Federal Court to do so.
But owner Elon Musk wants a fight, pitting him against a furious prime minister. For Mr Musk it is a question of free speech, for Mr Albanese a question of "social decency".
Also at issue is another question with far-reaching implications: how much authority do national governments have to enforce their own laws in the borderless online spaces where so much civic discourse now happens?
The combatants are likely to fire off their opening salvos in court today, although the timing has not yet been confirmed. Here's what we expect.
How we got to this point
The dispute began last Tuesday when eSafety Commissioner Julie Inman-Grant ordered X and Meta (owner of Facebook and Instagram) to remove footage of the stabbing of Assyrian preacher Mar Mari Emmanuel.
She has the legal authority to do so under the Online Safety Act, passed in 2021, which empowers eSafety to demand the removal of so-called 'class 1 material'.
That includes depictions of violent crime, child sex offences, or other "revolting or abhorrent phenomena [that] offend against the standards of morality, decency and propriety generally accepted by reasonable adults".
Failure to comply can result in a penalty of up to $782,500 for each instance. Meta complied and said it had deployed software to prevent any fresh posting of the material. But X said the order was "overreach", threatening legal action but promising to comply in the interim.
According to eSafety, X didn't comply in the interim, because it only 'geoblocked' the content rather than removing it. Geoblocking hides the content from Australian users only. But that can be circumvented by anyone using a Virtual Private Network (VPN), an easily-accessible technology which obscures a user's geographical location.
eSafety argued that wasn't good enough and sought an injunction in federal court on Monday. Lawyers for X said they had not had enough time to consult their client and weren't ready to argue their case.
The judge settled on a two-day injunction. X would have 24 hours to hide the material but could then return to court on Wednesday to argue against a longer-term injunction.
Now Wednesday has rolled around and X hasn't hidden the material, but a second hearing is still expected.
Who's the sheriff of this URL?
The central issue will be whether eSafety's powers under the Online Safety Act are limited to content that appears in Australia, or whether they can also cover content visible overseas.
The Online Safety Act is not explicit about this, and it does not discuss the issue of VPNs.
Under common law, courts typically presume a law does not apply 'extraterritorially' (outside Australia) unless this is made explicit.
But lawyers for eSafety argued in the initial hearing on Monday that the only reasonable interpretation of the law was that it did cover overseas content, since the law is about online safety for Australians and Australians can easily see content available anywhere in the world via a VPN.
But in a series of posts on X, Elon Musk has said he regards this as "global censorship".
"Our concern is that if ANY country is allowed to censor content for ALL countries… then what is to stop any country from controlling the entire Internet?" he posted.
Since acquiring Twitter (which he renamed X), Mr Musk has taken a much more permissive approach to hosting content other social media platforms would typically disallow. Although his tenure began with a spree of bans on users who mocked him, he has since restored many accounts which had been blocked for hate speech, to the dismay of advertisers.
This laissez-faire approach has inspired insults from Australian politicians across the political spectrum – Opposition Leader Peter Dutton accused him of acting "above the law", Greens senator Sarah Hanson-Young called him a "narcissistic cowboy", and Senator Jacqui Lambie called him a "knob".
But concern over the global implications of domestic censorship laws is broader than Elon Musk and X. Meta, which complied with eSafety's orders, has attracted criticism from civil liberties advocates for removing dissident political content at the request of authoritarian leaders, and it has also moved to reduce the prominence of political content on its sites entirely.
That frames the Australian court battle as a global canary in the coalmine on the intersection between national content laws and international tech giants.
What if X ignores the courts as well?
More immediately, it's not clear whether the federal court process will resolve the dispute over the Wakeley stabbing footage.
X does not appear to have complied with the court order to hide the relevant material ahead of today's hearing.
But even that is difficult to tell for certain, because eSafety's removal notices listed specific URLs. Timothy Webb, a tech law specialist at law firm Clayton Utz, said this would leave the regulator playing "whack a mole" even if it succeeded in court.
"[URLs] might enable X Corp to identify those posts if it wished to do so, [but] it doesn't stop the other posts," he said.
Posts featuring footage of the attack remain visible to Australian users on X, including several posts from Senator Ralph Babet of Clive Palmer's United Australia Party.
Mr Webb said it was also unclear whether a federal court injunction would be recognised in the US if X did not voluntarily comply.
"Australia and the US don't have a treaty for the reciprocal recognition of foreign judgments. Typically, subject to certain requirements, US courts are willing to entertain foreign judgments for monetary sums, but injunctions are a whole different story," he said.
That may put the onus back on the government to contemplate more drastic measures against the company, such as a ban.
Whatever its decision, it can expect to clash with X again in future if it pursues more expansive online crackdown powers via a misinformation and disinformation bill.
An earlier draft of that bill was widely panned, including by the Australian Human Rights Commissioner who labelled it "vague" and overly restrictive of free speech.
The government has promised to try again later this year.
A spokesperson for Communications Minister Michelle Rowland confirmed that timeline and said the bill was about "ensuring that social media companies are held to account for seriously harmful material on their platforms."
It is expected to go much further than the current laws, which are limited to graphic depictions, and could cover a wide variety of malicious and misleading political content – a more ambitious undertaking likely to draw objections from a much broader set of voices than Mr Musk and his supporters.
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