Australia’s online safety regulator has a few levers to limit the public seeing the US’s planned live stream of an execution but history suggests it will lead to a very public fight.
The US defense secretary, Pete Hegseth, announced last week the planned execution of Fort Hood shooter Nidal Hasan would be livestreamed when the military execution is carried out in early December.
The Greens have called on the eSafety commissioner, Julie Inman Grant, and the Albanese government to ensure that the event – if it goes ahead and is livestreamed – is not seen by Australians on TV or their devices.
The eSafety commissioner, under the Online Safety Act, has powers to order platforms such as Facebook, Instagram and X to block Australians from accessing posts that contain content deemed to be “refused classification” under Australian classification law.
The classification of such extreme violent material is typically applied to content online of terror attacks, and other terror-related content, but it could be applied to clips of the video of the public execution after the fact.
While some companies such as Meta will probably apply their own terms of service and prevent the distribution of the video, history suggests others will take a stand that the video should remain on their platforms.
X has given no indication whether it will allow such videos but the platform owned by Elon Musk has a long history of legal challenges against eSafety when it comes to this sort of content.
In ۲۰۲۴, X was successful in allowing footage of the stabbing of a Sydney bishop in his church in ۲۰۲۴ to remain available to Australians – the platform even recruited the bishop, Mar Mari Emmanuel, to argue to the court to allow the footage to stay online.
Most recently, X won an appeal to the classifications review board to have the classification of the video of the assassination of rightwing influencer Charlie Kirk at Utah Valley University downgraded from RC to R۱۸+, after eSafety ordered the removal of clips of the assassination last year.
It also won a similar case to reduce the rating of videos of the attack on Iryna Zarutska on a train in Charlotte, North Carolina, in August last year down to R۱۸+.
In laws passed by the former Coalition government in ۲۰۱۹ after the Christchurch terror attack, the eSafety commissioner also has powers to issue takedown notices to websites hosting footage that, among other things, depicts “actual violent crime such as murder, attempted murder, rape, torture”.
These laws were developed with the view to block streaming of terror attacks but could have wider applications for state-sponsored violence such as executions.
The eSafety commissioner last used these powers in ۲۰۲۲ to order websites to remove videos and related materials of the Buffalo, New York, terrorist attack in ۲۰۲۲. It can also declare an “online crisis event” and order internet service providers such as Telstra and Optus to block sites hosting the content, but this power has yet to be used.
The ISPs complied with eSafety’s request to block sites hosting the Christchurch attack in ۲۰۱۹ before the parliament had passed the laws.
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Such a move – particularly if focused on large social media platforms, or potentially sites owned by the Trump administration – may lead to a domestic firestorm among conservative media as well as a potential diplomatic incident, and may not be the regulator’s preferred option – especially given it has not been used before.
Last, there is the potential to seek penalties against platforms that fail to detect and remove violent material from their platform. The regulator is now testing this law out with messaging platform Telegram, which eSafety has alleged failed to remove some content that included executions conducted by terrorist groups.
The eSafety commissioner is seeking fines of up to A$۵۴.۶m and the hearing for the case is set down for February next year.
The other factor to consider is the laser-focus some in the US already have on Inman Grant. Her term is up in January next year, and Inman Grant has previously said she will not seek another term, but Trump-aligned politicians such as the Republican congressman Jim Jordan have labelled Inman Grant as a “zealot for global takedowns” and claimed she has threatened American speech on social media platforms.
Inman Grant has rejected the claims and she declined an invitation to speak before a US congress hearing at the time.
If Inman Grant bears the responsibility for decisions around whether Australians can see the livestreamed execution, it will likely provoke a new round of criticism.
The regulator late on Monday said it did not have powers to proactively block the streaming in Australia, and said it would monitor and enforce existing standards that could obligate online platforms to block it themselves.
The history of legal challenges and attention from the right of politics in the US suggests no easy solution in the eSafety toolkit – short of ministerial intervention.
