The legend of King Canute has a lesson for lawmakers that must have escaped the attention of the geniuses who insisted on giving global reach to the Online Safety Act.
Canute knew it was ludicrous to command the tides but he dragged his throne down to the beach and tried it anyway.
This was not an act of hubris. It was lesson designed to prove to his acolytes that some things are beyond the jurisdiction of even the most powerful lawgivers.
Wise legislators know their limits. Those who exceed their jurisdiction end up looking foolish and can turn the law into a joke.
Which brings us to the dispute between Anthony Albanese and Elon Musk over video of the knife attack in Sydney on Bishop Mar Mari Emmanuel.
Musk was subjected to prime ministerial abuse after he “geoblocked” the video for Australia but refused to comply with an order from the eSafety Commissioner, Julie Inman Grant, to delete it globally.
The genesis of this affair has nothing to do with Musk’s ego, as the prime minister would have us believe. It is to be found in the Canute-like assertion in section 23 of the Online Safety Act that this law applies to conduct in other countries.
It purports to impose penalties on foreign online companies for their conduct outside Australia.
Musk’s assertion that he does not need to comply with the commissioner’s order to delete the video internationally is a direct challenge to the Australian parliament’s silly assertion of global legislative power.
Here’s a reality check: the government has already realised there are problems with the Online Safety Act’s assertion of extraterritorial reach.
Even before the brawl with Musk, the government was considering a different method of regulating global social media that would avoid the problems of extraterritorial reach.
In November last year, communications minister Michelle Rowland launched a review of the Online Safety Act and released an issues paper that recognised the problem of attempting to apply Australian law to the internet.
This paper raises the possibility of adopting an alternative method of holding online entities to account.
It says one of the issues facing the penalties regime under the Online Safety Act “relates to the enforceability of penalties upon individuals or platforms based overseas”.
“While section 23 of the Act formally extends its enforceability to ‘acts, omissions, matters and things outside Australia’, there can be practical challenges to enforcement outside of Australia,” it says.
Because most online platforms are based overseas, with little or no local presence, “this is a potential challenge to Australia’s online safety framework”.
Similiar concerns about section 23’s assertion of global reach had been made by stakeholders and government officials before the Online Safety Act became law under the previous Coalition government.
They were ignored.
On March 5, 2021, when this scheme was still before parliament, a senate committee inquiry learned the Attorney-General’s department had raised a number of issues about the scheme with the then Coalition government.
That disclosure was made by Bridget Gannon, who was an assistant secretary in the department of infrastructure, transport, regional development and communications.
Before being interrupted mid-sentence by another official, the Hansard record shows Gannon told the environment and communications legislation committee: “The Attorney-General’s department raised a number of issues around overseas application of the law, around the eSafety Commissioner’s information-gathering powers . . . “.
The concerns about the global reach of the eSafety Commissioner were spelled out more extensively by Electronic Frontiers Australia, a non-profit group representing internet users.
On March 2, 2021, this group told the same inquiry: “This is a breathtaking amount of power to be handed to a single person, regardless of the level of oversight.
“Granting extraterritorial jurisdiction over all internet content to an unelected person appointed by the government of the day is an astounding proposition in a country that holds itself out as a liberal democracy,” Electronic Frontiers said.
Rowland’s review, and the ideas outlined in her issues paper, are an opportunity to go back and fix the problem that is eroding the credibility of Australian law and the powers asserted by the eSafety Commissioner.
The issues paper floats the prospect of copying a tactic used by Britain that might restore the standing of Australian law while giving foreign online companies a strong incentive to toe the line.
If the British system were applied here, internet companies that refused to comply with Australian rules could be subjected to a federally mandated business boycott within our borders without resorting to delusions of global reach.
The British system works by empowering a regulator, with the agreement of the courts, to require payment providers, advertisers and internet service providers to stop working with a particular entity.
The intention, according to Rowland’s paper, is to prevent online services that breach domestic rules from generating money or being accessed from the United Kingdom.
The big difference is that the British system relies on laws that apply within Britain, unlike the Australian system that intrudes on the sovereignty of other countries.
If such a system were now in place, Musk might still be in trouble but the statutory basis for the actions of the eSafety Commissioner would return to something more sound.
At the moment, Australia’s ham-fisted approach has given Musk the moral high ground. This country’s law has been brought into disrepute.
Musk might be extreme in his approach to freedom of speech, but Australia’s assertion of global legal power is even more extreme. It’s time to accept that the Online Safety Act is flawed and needs to change.
