Page:ESafety Commissioner v X Corp.pdf/8

 end-user, can view the material;

(c) alternatively, hide the material identified in the Notice behind a notice such that an X user can only see the notice, not the material identified in the Notice, and cannot remove the notice to reveal the material or

(d) alternatively, restrict the discoverability of the material to prevent the material identified in the Notice from appearing in any search results or any X feed on the X service.

The interim injunction

16 The injunction granted on 22 April and extended on 24 April was in the following terms.

17 The reference to hiding the material behind a notice was suggested by the Commissioner by reference to an online policy document, published by X Corp to its users, which describes X Corp's processes in relation to material posted on its platform that X Corp considers unsuitable.

Issues in relation to extension of the injunction

18 Consideration of interlocutory injunctions usually proceeds by reference to two issues: whether there is a real issue to be tried (sometimes put as whether the applicant has a prima facie case for the relief sought) and where the balance of convenience lies. The parties' arguments in this case proceeded in that way and my reasons will also. The fact that both the injunction sought by way of final relief and the interlocutory injunction are statutory, rather than granted as an exercise of equitable jurisdiction, does not change the issues in any fundamental way.

19 A real issue to be tried is at least ordinarily a sine qua non for the grant of an interlocutory injunction, but does not for that reason necessarily resolve into a binary yes/no question. That is because the two issues are not always independent of each other: the nature of the injunctive relief and the burden it would place on the respondent can make it appropriate to consider, as part of the balance of convenience, the strength of the prima facie case that is presented (see eg Bullock v Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472 (Woodward J, Sweeney J agreeing)).

Real issue to be tried

20 Although the power invoked to support the interim injunction in this case is statutory (s 122(1) (b) of the RP Act), it remains necessary to identify the prayer or prayers for final relief in eSafety Commissioner v X Corp [2024] FCA 499