We need debate on sensible limits on free speech

When president Franklin D. Roosevelt gave the 1941 State of the Union address he spoke of four essential human freedoms people “everywhere in the world” ought to enjoy. The very first of these was freedom of speech and expression.

Free speech was listed first because it is the bedrock of democracy. Salman Rushdie famously described it as “the whole thing, the whole ball game. Free speech is life itself”.

But it is not absolute. Exercising the right to free speech carries with it special duties and responsibilities. Determining precisely where that line should be drawn is an issue about which reasonable people can, and do, disagree.

The current legal dispute between the eSafety Commissioner and X Corp brings these issues into sharp focus.

Australia’s eSafety Commissioner, Julie Inman Grant, has issued a removal notice requiring X Corp to take all reasonable steps to ensure the removal of the video showing the violent stabbing attack against Bishop Mar Mari Emmanuel while he was giving a sermon in his church in western Sydney two weeks ago.

The Federal Court has granted an interim injunction that requires the video to be removed until a further court hearing on May 10.

The material in question here is a video showing a violent attack that has led to a 16-year-old being charged with committing a terrorist act. Australian law rightly restricts online content that shows or encourages terrorism, other forms of extreme violence, or child sexual abuse. Even X Corp itself has previously acknowledged this is the right approach. After the live-streaming of the horrific Christchurch mosque terrorist shootings in 2019, New Zealand and France brought together world leaders and CEOs of tech companies to adopt the Christchurch Call – a commitment to eliminate terrorist and violent extremist content online.

X Corp (then Twitter) signed the Christchurch Call in 2019 and still remains a listed supporter, with the French President announcing in December 2022 that Elon Musk had confirmed to him personally that X Corp’s participation in the Christchurch Call would not be affected by its change in ownership.

It isn’t enough for tech companies to make public promises about removing terrorist and violent extremist content online. They need to translate those promises into action – and be held accountable if they fail to do so. Global tech companies also need to understand they are not above the law. Australia has the sovereign right to apply its own laws within its own borders. If companies are not willing to respect the rule of law in Australia, they should not be allowed to do business in this country.

What remains a question for the Federal Court next month is how these obligations in Australia apply in other countries.All countries should be cautious before attempting to legislate extraterritorially, especially around issues of free speech where different countries have different approaches. What is viewed as freedom of expression in one country may not be viewed as such in another, with censorship laws being vastly different across the world.

We should always be careful when considering the remit of Australian laws overseas and the broader impact on free speech, but this does not mean we should remove online safety laws altogether. The work the eSafety Commissioner is doing to remove online child sexual abuse material, protect kids from cyber bullying, and take action against revenge porn is critical.

Australia was the first country to introduce an eSafety Commissioner and we should be proud of our global leadership in this space. Calls to abolish the eSafety Commissioner are shortsighted and will not only increase online risks for Australians but will leave the tech companies to operate in Australia with little or no accountability.

The limits on free speech should be few and far between. Recent events have shown the need for a sensible conversation about where (and how) those limits should be drawn in online spaces in Australia.

Lorraine Finlay is Human Rights Commissioner.