Page:ESafety Commissioner v X Corp.pdf/21

 52 Section 23(2) of the OS Act extends the operation of its provisions to "acts, omissions, matters and things outside Australia". It confirms that X Corp is in breach of the removal notice if it fails to take some "reasonable step" notwithstanding that the act or omission constituting that failure occurs overseas. However, s 23(2) does not control the meaning of "all reasonable steps". A clear expression of intention would be necessary to support a conclusion that Parliament intended to empower the Commissioner to issue removal notices with the effect for which she contends.

53 The result is that, read in context and in the light of normal principles of statutory construction, the "reasonable steps" required by a removal notice issued under s 109 do not include the steps which the Commissioner seeks to compel X Corp to take in the present case.

Conclusions

54 For these reasons I have come to the view, based on the arguments advanced at this interlocutory stage, that the Commissioner will not succeed in establishing that compliance with the removal notice entails blocking access to the 65 URLs by all users of X Corp. It follows that there is not a prima facie case for the grant of a final injunction in the terms sought.

Balance of Convenience

55 The conclusion reached in the previous paragraph makes it unnecessary to express any detailed view as to the balance of convenience.

56 If the considerations relating to the comity of nations (discussed at [48]–[51] above) had not led me to the view that the Commissioner has not made out a prima facie case, the same considerations would have led me to conclude that the balance of convenience does not favour extending the interlocutory injunction in its current (or any similar) form.

57 On the one hand the injunction, if complied with or enforced, has a literally global effect on the operations of X Corp, including operations that have no real connection with Australia or Australia's interests. The interests of millions of people unconnected with the litigation would be affected. Justifying an interlocutory order with such a broad effect would in my view require strong prospects of success, strong evidence of a real likelihood of harm if the order is not made, and good reason to think it would be effective. At least the first and the third of these circumstances seem to be largely absent. The first is discussed above. As to the third, it is not in dispute that the stabbing video can currently be viewed on internet platforms other than X. I was informed that the video is harder to find on these platforms. The interim injunction is therefore eSafety Commissioner v X Corp [2024] FCA 499