As legal and policy topics go, cross-border internet jurisdiction is evocative of a remote but restless volcano: smouldering away mostly unnoticed by public and lawyers alike, only to burst spectacularly into life at odd intervals.
The latest eruption has occurred in Australia, where last
month the Australian eSafety Commissioner launched legal proceedings for an
injunction against X Corp (Twitter) requiring it to remove or hide from all
users worldwide a video of a stabbing attack on an Australian bishop. X Corp
argues that geo-blocking the content from Australian users is sufficient. The
eSafety Commissioner disagrees, since Australian users equipped with VPNs can
evade the block. In a judgment published on 14 May 2024 Kennett J, a judge of the Federal
Court of Australia, sided with X Corp on an interim basis and declined to continue a previously
granted emergency injunction.
The underlying policy issue is that the internet is readily
perceived as undermining local laws, since material posted on the internet outside
the local jurisdiction is, by default, available worldwide. The Canadian Supreme
Court in Equustek put it thus:
“Where it is necessary to ensure
the injunction’s effectiveness, a court can grant an injunction enjoining
conduct anywhere in the world. The problem in this case is occurring online and
globally. The Internet has no borders — its natural habitat is global. The only
way to ensure that the interlocutory injunction attained its objective was to
have it apply where Google operates — globally.”
The countervailing concern is that when a court acts in that
way in order to secure the effectiveness of its local law, it is asserting the right to impose that law
on the rest of the world, where the material in question may be legal. Assertion
of extraterritorial jurisdiction has always had the potential to create
friction between nation states. When the internet arrived, its inherent
cross-border nature created additional policy tensions that, 30 or more years on, have
yet to be fully resolved.
The background to the current dispute is Australia’s Online
Safety Act 2021. A social media service is in scope of the Act unless “none of the
material on the service is accessible to, or delivered to, one or more
end-users in Australia” (S.13(4)). Thus any
social media service in the world is within the reach of the Australian
legislation, unless it can and does take steps that prevent all Australian
users from accessing its content.
However, the general territorial scope of the Act is not the
end of the story. Under the Act the eSafety Commissioner can issue a removal notice
in respect of ‘Class 1’ material if (among other things) the Commissioner is
satisfied that the material can be accessed by end-users in Australia. A
removal notice requires the service provider to “take all reasonable steps to
ensure the removal of the material from the service”.
Echoing S.13(4), S.12 provides that material is ‘removed’ if
“the material is neither accessible to, nor delivered to, any of the end-users
in Australia using the service.” (The court interpreted this as meaning all users
physically located in Australia.)
The Commissioner sought continuation of the previously granted emergency injunction pending trial. The court therefore had to decide whether there was a
real issue to be tried that the final injunction sought by the Commissioner would
go further than the “reasonable steps” that were all that a removal notice
could require.
X Corp had agreed to geoblock the 65 URLs specified in the
removal notice, so that they are not accessible to users with IP addresses in
Australia. The eSafety Commissioner sought an injunction that would require X
Corp to remove the 65 URLs from its platform altogether, or make them
inaccessible to all users. The Commissioner argued that such action was within
the “all reasonable steps” that the removal notice required to be taken. X Corp
argued that a requirement for worldwide removal or blocking of the material goes
beyond what is “reasonable”.
The court held that although a voluntary decision by X Corp
to remove the 65 URLs altogether would be reasonable (in the sense of easily
justified), that was not the test where the Act imposes its requirements regardless
of the wishes of providers and of individual users. “Reasonable” should
therefore be understood as limiting what must be done to the steps that it is
reasonable to expect or require the provider to undertake. Such steps include
not only considerations of expense, technical difficulty and time for
compliance, but (the issue that divided the parties) the other interests that
are affected.
Significantly, when considering the other interests
affected, the court brought into consideration the ‘comity of nations’. At an
earlier point in the judgment Kennett J had said:
“The policy questions underlying
the parties’ dispute are large. They have generated widespread and sometimes
heated controversy. Apart from questions concerning freedom of expression in
Australia, there is widespread alarm at the prospect of a decision by an
official of a national government restricting access to controversial material
on the internet by people all over the world. It has been said that if such
capacity existed it might be used by a variety of regimes for a variety of
purposes, not all of which would be benign. The task of the Court, at least at
this stage of the analysis, is only to determine the legal meaning and effect
of the removal notice. That is done by construing its language and the language
of the Act under which it was issued. It is ultimately the words used by
Parliament that determine how far the notice reaches.”
Nevertheless, when it came to consider reasonableness as a
matter of construction of the language of the Act, something very like those considerations
reappeared:
“49 If s 109 of the OS Act provided for a
notice imposing such a requirement, it would clash with what is sometimes
described as the “comity of nations” in a fundamental manner. …
50 If given the reach contended for by the
Commissioner, the removal notice would govern (and subject to punitive
consequences under Australian law) the activities of a foreign corporation in
the United States (where X Corp’s corporate decision-making occurs) and every
country where its servers are located; and it would likewise govern the
relationships between that corporation and its users everywhere in the world.
The Commissioner, exercising her
power under s 109, would be deciding what users of social media services
throughout the world were allowed to see on those services. The content to
which access may be denied by a removal notice is not limited to Australian
content.
In so far as the notice prevented
content being available to users in other parts of the world, at least in the
circumstances of the present case, it would be a clear case of a national law
purporting to apply to “persons or matters over which, according to the comity
of nations, the jurisdiction properly belongs to some other sovereign or
State”. Those “persons or matters” can be described as the relationships of a
foreign corporation with users of its services who are outside (and have no
connection with) Australia. What X Corp is to be permitted to show to users in
a particular country is something that the “comity of nations” would ordinarily
regard as the province of that country’s government.
51 The potential consequences for orderly and
amicable relations between nations, if a notice with the breadth contended for
were enforced, are obvious. Most likely, the notice would be ignored or
disparaged in other countries. (The parties on this application tendered
reports by experts on US law, who were agreed that a US court would not enforce
any injunction granted in this case to require X Corp to take down the 65
URLs.)”
In similar vein the judge went on to consider the balance
of convenience, in case he was wrong on the construction of the statute:
“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 not wholly pointless. However,
removal of the stabbing video from X would not prevent people who want to see
the video and have access to the internet from watching it.
58 On the other hand, there is uncontroversial
expert evidence that a court in the US (where X Corp is based) would be highly
unlikely to enforce a final injunction of the kind sought by the Commissioner;
and it would seem to follow that the same is true of any interim injunction to
similar effect. This is not in itself a reason why X Corp should not be held to
account, but it suggests that an injunction is not a sensible way of doing
that. Courts rightly hesitate to make orders that cannot be enforced, as it has
the potential to bring the administration of justice into disrepute.”
A notable aspect of these passages is the approach to comity
of nations, especially in the balance of convenience section which refers to
the effect on millions of people unconnected with the litigation. It stands in significant
contrast with the approach of the Canadian Supreme Court in Equustek (a
trade mark and confidential information case).
The court in that case took an approach to comity that was
both more abstract and more state-centric than that of Kennett J. It was
abstract in that it was apparently sufficient that other countries would recognise
the notion of intellectual property rights – without needing to consider the
concrete question of whether the plaintiff in fact owned equivalent intellectual
property rights throughout the world. It was more state-centric in that it
focused entirely on the sensibilities of other states, without consideration of
the individual interests and rights of users throughout the world.
Both differences are apparent from a passage in the British
Columbia Court of Appeal judgment under appeal in Equustek, endorsed by
the Canadian Supreme Court:
"In the case before us,
there is no realistic assertion that the judge’s order will offend the
sensibilities of any other nation. It has not been suggested that the order
prohibiting the defendants from advertising wares that violate the intellectual
property rights of the plaintiffs offends the core values of any nation."
[BCCA 93]
The notion that international law is about more than mere
state interests gains some support from the academic Jeremy Waldron. He has referred
to:
‘the peaceful and ordered world that
is sought in [international law] – a world in which violence is restrained or
mitigated, a world in which travel, trade and cooperation are possible. . . .
[This, he says, is] something sought not for the sake of national sovereigns
themselves, but for the sake of the millions of men, women, communities, and
businesses who are committed to their care’ [J. Waldron, ‘Are Sovereigns
Entitled to the Benefit of the International Rule of Law?’ (2011) 22 European
Journal of International Law 325.]
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