Federal Court of Australia

X Corp v eSafety Commissioner [2026] FCA 1123

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application be allowed.

THE COURT DECLARES THAT:

1.    The Online Safety (Relevant Electronic Services – Class 1A and Class 1B Material) Industry Standard 2024 (Cth) does not apply to the applicant in relation to its provision of X, which is a “social media service” as defined in s 13 of the Online Safety Act 2021 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RAPER J:

1    The Online Safety Act 2021 (Cth) seeks to improve and promote the online safety of Australians. To facilitate these ends, amongst other measures, the Act provides mechanisms for the creation and enforcement of various industry codes and standards. The Act provides for a consultative process whereby the eCommissioner may, request bodies or associations representing a particular section of the online industry to develop an industry code. This happened in this case with respect to a section of the online industry, namely those providers of social media services. In June 2023 the Commissioner registered that code, the Social Media Services Online Safety Code (Class 1A and Class 1B Material) (Cth) (Social Media Services Code). It came into effect on 16 December 2023 and applied to the X Platform. In June 2024, the Commissioner registered the Online Safety (Relevant Electronic Services – Class 1A and Class 1B Material) Industry Standard 2024 (Cth) (RES Standard), in respect of another section of the online industry, defined in the Act as “relevant electronic services”, which came into operation on 22 December 2024.

2    The dispute between the parties is whether X Corp can be required to comply with the RES Standard. X Corp says that because it is a “social media service” as defined in ss 5 and 13 of the Act, it cannot be required to comply with the RES Standard because that standard applies to “relevant electronic service[s]” within the meaning of s 13A of the Act. X Corp submits that the Act requires that an online service be specifically designated to only one of three categories of services, namely either a “social media service”, a “relevant electronic service” or a “designated internet service” within the meaning of ss 13, 13A and 14 of the Act. As a consequence, X Corp submits that an online service cannot be designated to more than one recognised service and therefore, given X Corp is (as the parties agree) a “social media service”, it is required to comply with the SMS Code but not the RES Standard. The Commissioner disagrees and says that whilst the Act defines different services, it does not preclude a service from falling within more than one of the categories of services and as a consequence an online service provider may be the subject of more than one industry code or industry standard.

3    X Corp seeks a declaration under s 39B of the Judiciary Act 1903 (Cth) that the RES Standard does not apply to its provision of the X Platform; or in the alternative a declaration that the RES Standard is invalid. At hearing, X Corp pursued relief, upon all grounds save for grounds 1(c) and 2(d)(ii). The grounds of relief were articulated as follows:

Grounds for relief

The Applicant seeks the relief set out above on the following grounds.

1.    As to prayer 1:

a.    X is a ‘social media service’ as defined in s 13 of the Online Safety Act and is not a ‘relevant electronic service’ as defined in s 13A of the Online Safety Act;

b.    alternatively, insofar as the RES Standard purports to apply to a provider of a ‘social media service’, the Respondent failed to comply with s 145(1)(c) of the Online Safety Act in respect of the SMS Code;

c.    alternatively, the RES Standard operates as a variation of the SMS Code in breach of ss 140 and 142 of the Online Safety Act.

2.    As to prayer 2:

a.    s 5(2) of the RES Standard is invalid because it seeks to displace the SMS Code to a greater extent than s 150 of the Online Safety Act;

b.    s 5(2) of the RES Standard is inseverable from the balance of the RES Standard and the RES Standard is therefore invalid;

c.    alternatively to (b), in the premises of (a):

i.    the Respondent’s state of satisfaction for the purposes of s 145(1B) of the Online Safety Act; and/or

ii.    the Respondent’s exercise of discretion under s 145(1) of the Online Safety Act,

were vitiated because the Respondent proceeded on the basis that s 5(2) of the RES Standard was valid;

d.    alternatively to (a) to (c):

i.    insofar as the RES Standard purports to apply to a provider of a ‘social media service’, the Respondent failed to comply with s 145(1)(c) of the Online Safety Act in respect of the SMS Code;

ii.    alternatively, the RES Standard operates as a variation of the SMS Code in breach of ss 140 and 142 of the Online Safety Act;

e.    alternatively to (a) to (d), in circumstances where the Respondent did not publish a draft of the final version of the RES Standard that included the current s 5(2) (final RES Standard) on the Respondent's website, did not publish a notice on the Respondent’s website stating that the Respondent had prepared a draft of the final RES Standard, and/or did not invite interested persons to give written comments about a draft of the final RES Standard, the RES Standard is invalid because:

i.    the Respondent failed to comply with s 148(1) of the Online Safety Act; and

ii.    alternatively, it was legally unreasonable for the Respondent to determine the RES Standard.

(emphasis in original)

Issues to be determined

4    The parties agreed that the following issues were to be determined (but where issue three no longer arises by reason of the abandonment of certain claims identified above):

1.    Does the Online Safety (Relevant Electronic Services - Class 1A and Class 1B Material) Industry Standard 2024 (Cth) (RES Standard) not apply to the Applicant in relation to its provision of the X Platform because the X Platform is a “social media service” as defined in s 13 of the Online Safety Act 2021 (Cth) and the X Platform is not a “relevant electronic service” as defined in s 13A of the Online Safety Act?

2.    Insofar as the RES Standard purports to apply to a provider of a “social media service” as defined in s 13 of the Online Safety Act:

(a)    was the Commissioner required to comply with s 145(1)(c) of the Online Safety Act in relation to the Social Media Services Online Safety Code (Class 1A and Class 1B Material) (Social Media Services Code) when making the RES Standard under s 145(1);

(b)    if the answer to question 2(a) is “yes”, did the Respondent fail to comply with s 145(1)(c) in relation to the Social Media Services Code when making the RES Standard?

3.    Insofar as the RES Standard purports to apply to a provider of a “social media service” as defined in s 13 of the Online Safety Act, does the RES Standard operate as a variation of the Social Media Services Code contrary to ss 140 and 142 of the Online Safety Act?

4.    If the answer to question 2(b) or question 3 is “yes”, is the RES Standard:

(a)    nonetheless valid;

(b)    wholly invalid; or

(c)    invalid insofar as it purports to apply in relation to the provision of a “social media service”, such that it does not apply to the Applicant in relation to its provision of the X Platform?

5.    Is cl 5(2) of the RES Standard invalid because it would displace industry codes to a greater extent than s 150 of the Online Safety Act?

6.    If the answer to question 5 is “yes”, is cl 5(2) severable from the balance of the RES Standard, or is the RES Standard wholly invalid?

7.    If the answer to question 5 is “yes” and cl 5(2) is severable, was:

(a)    the Respondent’s state of satisfaction for the purposes of s 145(1B) of the Online Safety Act; and / or

(b)    the Respondent's exercise of discretion to make the RES Standard under s 145(1) of the Online Safety Act,

vitiated because the Respondent proceeded on the basis that cl 5(2) of the RES Standard was valid, such that the RES Standard is invalid?

8.    In circumstances where the Respondent did not publish on the Respondent’s website a draft of the final version of the RES Standard that included the current cl 5(2), did not publish a notice on that website stating that the Respondent had prepared a draft of the final version of the RES Standard that included the current cl 5(2), and did not invite interested persons to give written comments about a draft of the final version of the RES Standard:

(a)    did the Respondent fail to comply with s 148(1) of the Online Safety Act in relation to the RES Standard, such that it is invalid; and / or

(b)    was it legally unreasonable for the Respondent to make the RES Standard in its final form under s 145(1), such that it is invalid?

5    As is apparent from the above, if issue one is determined in X Corp’s favour, none of the other issues arise. Whilst it would ordinarily be for the Court to determine, as far as it is able, all the issues arising, the Court has some hesitation, in determining the alternative case as to invalidity, particularly where there is necessarily overlap as to the persuasive integers leading to the constructional choice involved in the determination of each. The authorities recognise that it would ordinarily be inappropriate, as a matter of practice, for the Court to determine a question as to the validity of a statute (albeit by reference to the Constitution) where doing justice does not require it: Clubb v Edwards, Preston v Avery [2019] HCA 11; 267 CLR 171 (per Kiefel CJ, Bell and Keane JJ) at [36].

Background facts

6    On 11 April 2022, the Commissioner issued notices to industry representatives of the eight sections of the online industry identified in s 135, requesting that they develop draft codes. Thereafter, on 18 November 2022, industry representatives submitted to the Commissioner draft Head Terms and draft Phase 1 Codes, for each of the “social media service”, the “relevant electronic service” and the “designated service” industries. On 9 February 2023, the Commissioner notified the industry representatives of its preliminary view that each of the draft Phase 1 Codes did not provide appropriate community safeguards. On 31 March 2023, industry representatives provided revised industry codes and revised Head Terms.

7    On 16 June 2023, the Commissioner registered five industry codes, which included the SMS Code.

8    Each of the registered codes comprise the Head Terms – Consolidated Industry Codes of Practice for the Online Industry (Class 1A and Class 1B Material) together with a schedule specific to each section of the online industry. The Head Terms provided guidance as to “Identifying the applicable code or standard” and stated:

For each online activity that they undertake, each participant in the online industry must identify and comply with the industry code or industry standard that applies to that online activity.

Where a single electronic service could fall within the scope of more than one industry code or industry standard, the relevant industry participant will only be required to comply with one code or industry standard, as the case may be, for that electronic service. The code or industry standard that will apply in this situation is the code or industry standard that is most closely aligned with the predominant purpose of the single electronic service.

No industry participant will have to comply with more than one industry code or industry standard in relation to the same electronic service.

The Schedule for each industry code may provide further detail as to the intended scope of that code. If an industry participant is still unsure as to which industry code or industry standard is applicable to a particular electronic service, the industry participant may seek guidance from eSafety.

(emphasis added)

9    There was no dispute between the parties that the X Platform is a “social media service” as defined in ss 5 and 13 of the Act.

10    Importantly, the Commissioner did not register the proposed “relevant electronic service” standard.

11    Thereafter, on 20 November 2023, the Commissioner released a Draft Online Safety (Relevant Electronic Services - Class 1A and Class 1B Material) Industry Standard 2024 (draft RES Standard), Draft Online Safety (Designated Internet Services - Class 1A and Class 1B Material) Industry Standard 2024 (draft DIS Standard), discussion papers and fact sheets.

12    At that time, cl 5(2) of the draft RES Standard, dealt with the question of the possible interplay between the existence of a draft industry standard and code in the following way:

5 Application of this industry standard

(1)    This industry standard applies to a relevant electronic service, wherever it is provided from, but only so far as it is provided to end-users in Australia.

(2)    If:

(a)    this industry standard applies to a relevant electronic service; and

(b)    another industry standard, or an industry code, applies to the service; and

(c)    the service’s predominant functionality is more closely aligned with the other industry standard or the industry code;

this industry standard does not apply to the service.

(emphasis added)

13    In the Commissioner’s Discussion Paper regarding the draft RES Standard, the Commissioner, when proposing questions for discussion, referred to the “applicability of the [s]tandard” in the following way and proposed the following question:

Section 5 of the draft Relevant Electronic Services Standard provides that, where a single electronic service could potentially fall within the scope of the Relevant Electronic Services Standard and also an industry code or another standard under the Act, the service provider will only be required to comply with one code or one standard in relation to that specific service (until the relevant industry code or standard dealing with class 2 content comes into effect). The applicable industry code or standard will be the one that the service’s predominant functionality is most closely aligned with.

Question 3

Is the test in section 5 workable? Is further guidance required to assist providers to determine whether this standard, or another code or standard, applies to a particular online service?

(emphasis in original)

14    Thereafter, in December 2023, the Commissioner received submissions which criticised the proposed “predominant functionality” test proposed in cl 5(2). This included a submission from the Digital Industry Group Inc (DIGI) of which X Corp is a member. In that submission, DIGI stated:

The Standards take a different approach to the Codes in determining whether a Standard applies to services for a particular industry participant. We are concerned that this creates confusion and uncertainty for industry participants in determining which regulatory instrument applies to their services.

15    DIGI then referred to the “predominant purpose” test in the Head Terms (extracted above) and to their agreement that “participants should only be required to comply with one Code or Standard per service” and recommended that cl 5 of the proposed RES and DIS Standards be amended so that industry participants must apply the same “predominant purpose” test for determining which Code or Standard is applicable to its online activities in Australia.

16    In March 2024, the Commissioner released a document that contained a summary of feedback regarding the RES and DIS Standards.

17    In an internal email on 17 May 2024 sent within the Commissioner’s office, it identified the key changes to be made to the RES and the DIS Standards. Notably it provided apparent justification for the proposed material change to the RES Standard (and not the DIS Standard). This change was that the RES Standard would apply to the exclusion of any industry code. However, the DIS Standard would not apply where another standard or code applied to the DIS and the service’s predominant purpose was more closely aligned with the other industry standard or code).

It is appropriate that some DIS apply to other codes or standards where their predominant purpose aligns with the code/standard.

…

The change to the RES Standard to not allow any exceptions has been introduced to stop forum shopping between the RES Standard and SMS Code.

Many RES services will also meet the definition of SMS under the OSA. Under this construction, the RES Standard will always apply where a service meets the definition of RES even if the service is primarily an SMS.

Services that meet the requirements of both RES and SMS will only be required to comply with the RES Standard and will not be subject to the SMS Code.

…

18    On 21 June 2024, the Commissioner registered the Online Safety (Designated Internet Services – Class 1A and Class 1B Material) Industry Standard 2024 (Cth) (DIS Standard) which contained similar language in cl 5(2) of the draft DIS Standard and that contained in the “predominant purpose test” as had been contained in the draft RES Standard and in the Head Terms.

19    On the same day, the Commissioner registered the RES Standard but where cl 5(2) was in different terms:

5 Application of this industry standard

(1)    This industry standard applies to a relevant electronic service, wherever it is provided from, but only so far as it is provided to end-users in Australia.

(2)    This industry standard applies to the exclusion of any industry code.

20    In the Commissioner’s fact sheet regarding the RES Standard published on the same day, as the application of industry standard, the “Details of change” stated:

This section no longer includes subsection (2) covering the test relating to a service’s predominant functionality in determination of the application of the RES Standard or another industry standard or code. A provider of a relevant electronic service will only be required to comply with the RES Standard for that service.

21    On 14 November 2024, the Commissioner issued the Phase 1 Codes and Standards Regulatory Guides. In the Phase 1 Codes (Class 1A and Class 1B Material) Regulatory Guidance, the Commissioner stated:

Services are increasingly fulfilling multiple purposes and offering several features for users. In particular, some social media services are also relevant electronic services. For example, a social media service may offer a range of features that enable social interaction and allow users to post content as outlined in the Act’s definition for a social media service. If that service also includes, for example, instant messaging or chat functionality, then that service is likely to meet the definition of ‘relevant electronic service’ in the Act and therefore be subject to the Relevant Electronic Services Standard. The presence of other features relating to social media does not affect this categorisation.

The relevant electronic services definition provides for any service which enables communication with other end-users by means of email, instant messaging services, SMS services, MMS services, or online chat services, as well as services that enable end-users to play online games together. A service which meets the definition is considered a relevant electronic service and the provider will be required to comply with the Relevant Electronic Services Standard, regardless of whether the service also meets the definition of another industry section.

This is because section 5.2 of the Relevant Electronic Services Standard provides that it applies ‘to the exclusion of any industry code’. The Act also provides that industry standards prevail over inconsistent industry codes.

…

[O]nce the Relevant Electronic Services Standard commences, services that fall into the definitions of both social media services and relevant electronic services will no longer have to comply with the Social Media Services Code. Instead, they will have to comply with the Relevant electronic Services Standard.

(emphasis in original)

22    On 22 December 2024, the RES Standard and the DIS Standard commenced.

Is it possible for X Corp to be both a “social media service” and a “relevant electronic service” under the Act?

23    It was the Commissioner’s primary contention that nowhere in the Act does the Act say, not only can there be separate and distinct statutory categories of “services”, but that each is a mutually exclusive category. This is true. However, there are problems with how the Commissioner thereafter developed her submission. It was submitted that there was nothing in the Act that tells a provider how to make the choice of characterisation. Two problems underpin this submission. First, the Act does include characterisation. Secondly, it is not a question of choice or “self-selection”.

24    As will be apparent from the below, absent characterisation there would be enormous overlap between the categories of “social media services” and “relevant electronic services”. There are specific textual indicators in favour of separate (and distinct) categorisation.

25    The Act, in its Preliminary part, identifies three types of the online services (social media services, relevant electronic services and designated internet services) which thereafter inform later aspects of the Act.

26    Section 13 of the Act defines “social media service” as follows:

13 Social media service

(1)    For the purposes of this Act, social media service means:

(a)    an electronic service that satisfies the following conditions:

(i)    the sole or primary purpose of the service is to enable online social interaction between 2 or more end‑users;

(ii)    the service allows end‑users to link to, or interact with, some or all of the other end‑users;

(iii)    the service allows end‑users to post material on the service;

(iv)    such other conditions (if any) as are set out in the legislative rules; or

(b)    an electronic service specified in the legislative rules;

but does not include an exempt service (as defined by subsection (4)).

Note:    Online social interaction does not include (for example) online business interaction.

(2)    For the purposes of subparagraph (1)(a)(i), online social interaction includes online interaction that enables end‑users to share material for social purposes.

Note:    Social purposes does not include (for example) business purposes.

(3)    In determining whether the condition set out in subparagraph (1)(a)(i) is satisfied, disregard any of the following purposes:

(a)    the provision of advertising material on the service;

(b)    the generation of revenue from the provision of advertising material on the service.

Exempt services

(4)    For the purposes of this section, a service is an exempt service if:

(a)    none of the material on the service is accessible to, or delivered to, one or more end‑users in Australia; or

(b)    the service is specified in the legislative rules.

27    Section 13A defines “relevant electronic service” to mean:

13A Relevant electronic service

(1)    For the purposes of this Act, relevant electronic service means any of the following electronic services:

(a)    a service that enables end-users to communicate, by means of email, with other end-users;

(b)    an instant messaging service that enables end-users to communicate with other end-users;

(c)    an SMS service that enables end-users to communicate with other end-users;

(d)    an MMS service that enables end-users to communicate with other end-users;

(e)    a chat service that enables end-users to communicate with other end-users;

(f)    a service that enables end-users to play online games with other end-users;

(g)    an electronic service specified in the legislative rules;

but does not include an exempt service (as defined by subsection (2)).

Note 1:    SMS is short for short message service.

Note 2:    MMS is short for multimedia message service.

Exempt services

(2)    For the purposes of this section, a service is an exempt service if none of the material on the service is accessible to, or delivered to, one or more end-users in Australia.

28    Section 14 defines “designated internet service” to mean:

14 Designated internet service

(1)    For the purposes of this Act, designated internet service means:

(a)    a service that allows end-users to access material using an internet carriage service; or

(b)    a service that delivers material to persons having equipment appropriate for receiving that material, where the delivery of the service is by means of an internet carriage service;

but does not include:

(c)    a social media service; or

(d)    a relevant electronic service; or

(e)    an on-demand program service; or

(f)    a service specified under subsection (2); or

(g)    an exempt service (as defined by subsection (3)).

(2)    The Minister may, by legislative instrument, specify one or more services for the purposes of paragraph (1)(f).

Exempt services

(3)    For the purposes of this section, a service is an exempt service if none of the material on the service is accessible to, or delivered to, one or more end-users in Australia.

29    As to the interplay between each of these three definitions, I would note two things at this juncture. First, s 13 unlike ss 13A and 14, includes a “sole or primary purpose” qualifier. Secondly, s 14 states expressly that a “designated internet service” does not include other identified services.

The immediate context – the definitions of online services support characterisation and demarcation

30    This informs the immediate context: The definition of “social media services”, as part of its requirements, points to characterisation (sole as opposed to merely separate from a “relevant electronic service”).

31    Section 13 is structured to overcome possible dual characterisation by the express adoption of the “sole or primary purpose” in determining (as a condition) whether it is that service (in s 13(1)(a)). This recognises the likely overlap between a “social media service” and “relevant electronic service”, namely the direct interaction between users, and provides a path for resolution as to (sole) characterisation. A defining feature of a social media service is interaction or linking between end-users (s 13(1)(a)(i) and (ii)). I accept X Corp’s submission that the section recognises that the means by which this occurs may well include messaging other end-users on the social media platform. This was known at the time of the inception of the Act: The Explanatory Memorandum to the Online Safety Bill 2021 (Cth) at 15, expressly referred to the encountering of “hate speech” usually occurred on Facebook and Instagram. In this context, there was express acknowledgment of the “online messaging [function] in social media sites such as Facebook and Instagram”. I do not accept the Commissioner’s claim that this “solitary reference” is of any relevance. I accept X Corp’s submission that, it was obvious, as at the time of the Explanatory Memorandum, that there would be overlap. Further, the content of the Explanatory Memorandum coheres with X Corp’s textual interpretation. Though, it is my view that the text itself is sufficient. I accept X Corp’s submission that if the use of those means were sufficient to characterise a “social media service” as also a “relevant electronic service”, enormous overlap between the two sections of the industry would result, and s 13 would become substantially otiose. The Commissioner’s purported answer to this is that the Act was intended to be “future proofed against technological developments”. I do not accept this. The Act creates certain, specific, separate characterisations.

32    Similarly, subss 14(1)(c) and (d) exclude from “designated internet service” a “social media service” or a “relevant electronic service”. This wards against a legislative intention that overlap (or dual characterisation) was intended. In response to this argument, the Commissioner submitted that this “immediately suggests overlap was not intended” (as X Corp submits) as between the “designated internet service” and the other two services, and that it says nothing as to the relationship between social media services and relevant electronic services. I do not accept this argument when it is coupled with the text of s 13 above. Rather, the express demarcation in each coheres with an interpretation pointing to sole, not possible dual characterisation.

The broader legislative context – the Act’s structure is in line with sole characterisation and demarcation

33    The Commissioner’s reading goes against the structure of the Act. The Act is founded on these siloed characterisations. I reject the Commissioner’s claim that on X Corp’s interpretation, for there to be such a “fundamental cleavage” between “social media services” and “relevant electronic services”, which did not appear until Div 7 of Pt 9, constituted “hid[ing] elephants in mouse holes”. The Commissioner fails to recognise the “fundamental cleavage” appears at the beginning of the Act when each of the three services are defined and those definitions are thereafter regularly deployed throughout the legislative scheme.

34    Part 2 of the Act describes the powers and functions of the Commissioner. Part 3 contains provisions concerning when complaints can be made about online content, objections and investigations. Thereafter, Pt 4 empowers the Minister to determine basic online safety expectations. A provider of online services may be required to give the Commissioner reports as to its compliance with those applicable basic online safety expectations.

35    The basic online safety expectation provisions mirror the tripartite characterisation in ss 13, 13A and 14. Under s 45 the Minister may, by legislative instrument, determine basic online safety expectations for each of the three services:

45 Basic online safety expectations

Social media service

(1)    The Minister may, by legislative instrument, determine that the basic online safety expectations for a social media service are the expectations specified in the determination.

Relevant electronic service

(2)    The Minister may, by legislative instrument, determine that the basic online safety expectations for each relevant electronic service included in a class of relevant electronic services specified in the determination are the expectations specified in the determination.

Designated internet service

(3)    The Minister may, by legislative instrument, determine that the basic online safety expectations for each designated internet service included in a class of designated internet services specified in the determination are the expectations specified in the determination.

Determination does not impose a legally enforceable duty

(4)    A determination under this section does not impose a duty that is enforceable by proceedings in a court.

36    It is evident therefore that to construe the definitions of “social media service” and “relevant electronic service” as overlapping causes disharmony in Pt 4: Section 45 grants distinct powers to make basic online safety expectations for each of the three online services. If industry sections are not distinct, these expectations “could be contradictory as between a social media service and a relevant electronic service” (as conceded by the Commissioner) and may “require contradictory conduct” (RS [8]). The Commissioner conceded that it is theoretically possible that expectations could be contradictory as between a “social media service” and a “relevant electronic service” but suggested it was an “extreme example” that is of limited assistance.

37    However, the purported suggestion by the Commissioner that such disharmony could be overcome because “all the provider would need to do is explain, in the reports required by Part 4, that it could not comply with both sets of expectations because they require contradictory conduct” is not compelling. As postulated by X Corp, with which set of expectations, in that circumstance, should the provider comply? In any event, the provider would have failed to comply with one and remain exposed to service provider notifications under s 48(2). No provision in the Act resolves such a conflict.

38    Thereafter, without exhaustively describing the Commissioner’s powers under this Part, by way of illustration, pursuant to s 49, the Commissioner may, by written notice require periodic reporting (again by reference to each of three “services” separately defined):

49 Periodic reporting notice

Scope

(1)    This section applies to the following services:

(a)    a social media service, if there are basic online safety expectations for the service;

(b)    a relevant electronic service, if there are basic online safety expectations for the service;

(c)    a designated internet service, if there are basic online safety expectations for the service.

Notice

(2)    The Commissioner may, by written notice given to the provider of the service, require the provider to:

(a)    do whichever of the following is specified in the notice:

(i)    prepare periodic reports about the extent to which the provider complied with the applicable basic online safety expectations during such regular intervals as are specified in the notice;

(ii)    prepare periodic reports about the extent to which the provider complied with one or more specified applicable basic online safety expectations during such regular intervals as are specified in the notice; and

(b)    prepare those periodic reports in the manner and form specified in the notice; and

(c)    give each of those periodic reports to the Commissioner:

(i)    within the period ascertained in accordance with the notice in relation to the periodic report concerned; or

(ii)    if the Commissioner allows a longer period in relation to the periodic report concerned—within that longer period.

(3)    An interval specified under subparagraph (2)(a)(i) or (ii):

(a)    must not be shorter than 6 months; and

(b)    must not be longer than 24 months.

(4)    A period ascertained in accordance with the notice as mentioned in subparagraph (2)(c)(i) must not be shorter than 28 days after the end of the interval to which the periodic report relates.

(5)    In deciding whether to give a notice under subsection (2) to the provider of a service, the Commissioner must have regard to the following:

(a)    the number of occasions during the previous 12 months on which complaints about material provided on the service were made to the Commissioner under this Act;

(b)    whether the provider has previously contravened a civil penalty provision of this Division;

(c)    whether there are deficiencies in the provider’s practices, so far as those practices relate to the capacity of end-users to use the service in a safe manner;

(d)    whether there are deficiencies in the service’s terms of use, so far as they relate to the capacity of end-users to use the service in a safe manner;

(e)    whether the provider has agreed to give the Secretary regular reports relating to the capacity of end-users to use the service in a safe manner;

(f)    such other matters (if any) as the Commissioner considers relevant.

39    If the Commissioner gave notice under subs 49(2), the Commissioner could provide notification of non-compliance under s 55, which is set out in the following terms:

55 Service provider notifications

(1)    If:

(a)    the Commissioner gave a notice under subsection 49(2) to the provider of:

(i)    a social media service; or

(ii)    a relevant electronic service; or

(iii)    a designated internet service; and

(b)    the provider did not comply with the notice;

the Commissioner may:

(c)    prepare a statement to that effect; and

(d)    publish the statement on the Commissioner’s website; and

(e)    give a copy of the statement to the provider of the service.

(2)    If:

(a)    a determination under subsection 52(2) applies to the provider of:

(i)    a social media service; or

(ii)    a relevant electronic service; or

(iii)    a designated internet service; and

(b)    the provider did not comply with the determination;

the Commissioner may:

(c)    prepare a statement to that effect; and

(d)    publish the statement on the Commissioner’s website; and

(e)    give a copy of the statement to the provider of the service.

40    Notably here, it is assumed that the notification is to be given to a provider of one (and not one characterised as being more than one of the three services) by deployment of the disjunctive “or” in s 55(1)(a).

41    Similarly, under s 65, the Act assumes, in the context of issuing a removal notice to a provider, that the material will have been provided on one of the services (not more than one), as is apparent from s 65(1)(a). Section 65 is set out in full:

65 Removal notice given to the provider of a social media service, relevant electronic service or designated internet service

(1)    If:

(a)    material is, or has been, provided on:

(i)    a social media service; or

(ii)    a relevant electronic service; or

(iii)    a designated internet service; and

(b)    the material was the subject of a complaint that was made to the provider of the service; and

(c)    the material was not removed from the service within:

(i)    48 hours after the complaint was made; or

(ii)    such longer period as the Commissioner allows; and

(d)    a complaint has been made to the Commissioner under section 30 about the material; and

(e)    the Commissioner is satisfied that the material is or was cyber-bullying material targeted at an Australian child;

the Commissioner may give the provider of the service a written notice (a removal notice) requiring the provider to:

(f)    remove the material from the service; and

(g)    do so within:

(i)    24 hours after the removal notice was given to the provider; or

(ii)    such longer period as the Commissioner allows.

Note:    For enforcement, see:

(a)    sections 67 and 162 (civil penalty); and

(b)    section 163 (infringement notices); and

(c)    section 164 (enforceable undertakings); and

(d)    section 165 (injunctions).

(2)    So far as is reasonably practicable, the material must be identified in the removal notice in a way that is sufficient to enable the provider of the service to comply with the notice.

Notice of refusal to give a removal notice

(3)    If the Commissioner decides to refuse to give a removal notice under subsection (1), the Commissioner must give written notice of the refusal to the person who made a section 30 complaint about the material concerned.

42    The same assumption underlines s 73:

73 Service provider notifications

(1)    If:

(a)    material is provided on:

(i)    a social media service; or

(ii)    a relevant electronic service; or

(iii)    a designated internet service; and

(b)    the Commissioner is satisfied that the material is or was cyber-bullying material targeted at an Australian child; and

(c)    a complaint has been made to the Commissioner under section 30 about the material;

the Commissioner may, with the consent of the complainant, give the provider of the service a written notice that:

(d)    identifies the material; and

(e)    states the Commissioner is satisfied that the material is cyber-bullying material targeted at an Australian child.

(2)    If the Commissioner is satisfied that there were 2 or more occasions during the previous 12 months on which:

(a)    cyber-bullying material targeted at an Australian child is, or has been, provided on:

(i)    a social media service; or

(ii)    a relevant electronic service; or

(iii)    a designated internet service; and

(b)    the provision of the material contravened the service’s terms of use;

the Commissioner may:

(c)    prepare a statement to that effect; and

(d)    publish the statement on the Commissioner’s website; and

(e)    give a copy of the statement to the provider of the service.

43    The same assumption appears in numerous other sections, without being exhaustive, but which include ss 75, 77, 78, 79, 85, 88, 89, 90 and 93.

44    The Commissioner submitted that Parts 5, 6 and 7 empower the Commissioner to give “removal notices” to providers of “social media services”, “relevant electronic services” and “designated internet services” to remove material from their services. The Commissioner submitted that these provisions apply in the same way regardless of whether the material is provided on an “electronic service” characterised as a “social media service” or a “relevant electronic service” or both. However, this submission does not grapple with the fact that there is a necessity for specific identification and designation of the “material” being provided on a specific service.

45    The same structure can be seen at work in other sections of the Act. The Act is replete with the use of the disjunctive, when referring to each of the services and explicit delineation between those services. The removal notice provisions (ss 109, 110, 114, 115), remedial notice provisions (ss 119, 120) and service provider notification provisions (ss 113A, 118A, 123A) concern material that “is, or has been, provided on: (i) a social media service; or (ii) a relevant electronic service; or (iii) a designated internet service” (emphasis added).

46    There is a specific delineation between services for the purposes of the kinds of orders that may be made by this Court (ss 156, 157 and 158). Further, the Act provides for “basic online safety expectations”, as may be made by the Minister, again for each of the separately designated services (s 45). Again, there is no provision to resolve inconsistent basic online safety expectations.

47    Of particular relevance to this proceeding, Div 7 of Pt 9 concerns the creation of industry codes and standards.

48    Sections 140 and 142 provide for the registration and replacement of industry codes:

140 Registration of industry codes

Scope

(1)    This section applies if:

(a)    the Commissioner is satisfied that a body or association represents a particular section of the online industry; and

(b)    that body or association develops an industry code that applies to participants in that section of the industry and deals with one or more matters relating to the online activities of those participants; and

(c)    the body or association gives a copy of the code to the Commissioner; and

(d)    the Commissioner is satisfied that:

(i)    to the extent to which the code deals with one or more matters of substantial relevance to the community—the code provides appropriate community safeguards for that matter or those matters; and

(ii)    to the extent to which the code deals with one or more matters that are not of substantial relevance to the community—the code deals with that matter or those matters in an appropriate manner; and

(e)    the Commissioner is satisfied that, before giving the copy of the code to the Commissioner:

(i)    the body or association published a draft of the code and invited members of the public to make submissions to the body or association about the draft within a specified period; and

(ii)    the body or association gave consideration to any submissions that were received from members of the public within that period; and

(f)    the Commissioner is satisfied that, before giving the copy of the code to the Commissioner:

(i)    the body or association published a draft of the code and invited participants in that section of the industry to make submissions to the body or association about the draft within a specified period; and

(ii)    the body or association gave consideration to any submissions that were received from participants in that section of the industry within that period; and

(g)    the Commissioner has been consulted about the development of the code.

Registration

(2)    The Commissioner may register the code by including it in the Register of industry codes kept under section 149.

Period of consultation

(3)    A period specified under subparagraph (1)(e)(i) or (1)(f)(i) must run for at least 30 days.

Replacing industry codes

(4)    If:

(a)    an industry code (the new code) is registered under this Division; and

(b)    the new code is expressed to replace another industry code;

the other code ceases to be registered under this Division when the new code is registered.

…

142 Replacement of industry codes

(1)    Changes to an industry code are to be achieved by replacing the code instead of varying the code.

(2)    If the replacement code differs only in minor respects from the original code, section 140 has effect, in relation to the registration of the code, as if paragraphs 140(1)(e) and (f) of this Division had not been enacted.

Note:    Paragraphs 140(1)(e) and (f) deal with submissions about draft codes.

49    Section 145 prescribes the limited circumstances where the Commissioner may determine an industry standard to have application:

145 Commissioner may determine an industry standard

(1)    The Commissioner may, by legislative instrument, determine a standard that applies to participants in a particular section of the online industry if:

(a)    the Commissioner has made a request under section 141 in relation to the development of an industry code and one or more of the following conditions is satisfied:

(i)    the request is not complied with;

(ii)    if a draft code is developed by the body or association— the draft does not contain appropriate community safeguards to deal with one or more matters specified in the request;

(iii)    if indicative targets for achieving progress in the development of the code were specified in the notice of request—any of those indicative targets were not met;

(iv)    the request is complied with, but the Commissioner subsequently refuses to register the code; or

(b)    the Commissioner has published a notice under subsection 141A(1) in relation to a particular section of the online industry that is not represented by a body or association and all of the following conditions are satisfied:

(i)    the notice states that, if such a body or association were to come into existence within a specified period, the Commissioner would be likely to give a notice to that body or association under subsection 141(1);

(ii)    the notice sets out one or more matters relating to the online activities of the participants in that section of the industry that would be specified in a notice under subsection 141(1);

(iii)    no such body or association comes into existence within the period specified in the notice; or

(c)    an industry code that applies to participants in a particular section of an online industry has been registered under section 140 for at least 180 days and all of the following conditions are met:

(i)    the Commissioner is satisfied that the code is deficient;

(ii)    the Commissioner has given the body or association that developed the code a written notice requesting that deficiencies in the code be addressed within a specified period;

(iii)    the period specified under subparagraph (ii) ends and the Commissioner is satisfied that the deficiencies in the code have not been adequately addressed.

Note:    For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

(1A)    For the purposes of subparagraph (1)(c)(i), an industry code that applies to participants in a particular section of an online industry and deals with one or more matters relating to the online activities of those participants is deficient if:

(a)    the code is not operating to provide appropriate community safeguards in relation to one or more of those matters; or

(b)    the code is not otherwise operating to regulate adequately participants in that section of the online industry in relation to that matter or those matters.

(1B)    The Commissioner must not determine a standard under subsection (1) that applies to participants in a particular section of the online industry unless the Commissioner is satisfied that it is necessary or convenient for the Commissioner to determine the standard in order to:

(a)    provide appropriate community safeguards in relation to one or more matters relating to the online activities of those participants; or

(b)    otherwise regulate adequately participants in that section of the online industry in relation to that matter or those matters.

(2)    A standard under this section is to be known as an industry standard.

(3)    The Minister may, by legislative instrument, give the Commissioner a written direction as to the exercise of the Commissioner’s powers under this section.

(emphasis in original)

50    Notably, each of ss 140, 141 and 145, are informed by three key terms (a) “online activity” (as defined in s 134); (b) “sections of the online industry” (as defined in s 135); and (c) “participants” in a section of the online industry (as defined in s 136). Accordingly, the scheme of Pt 9 Div 7 (the operation of the industry codes and industry standards) is scaffolded by distinct “sections of the online industry”. Sections 134 to 136 provide in terms by demarcating the “sections of the online industry” by reference to particular “online activities”. Each of which are extracted as follows:

134 Online activity

For the purposes of this Division, an online activity is an activity that consists of:

(a)    providing a social media service, so far as the service is provided to end-users in Australia; or

(b)    providing a relevant electronic service, so far as the service is provided to end-users in Australia; or

(c)    providing a designated internet service, so far as the service is provided to end-users in Australia; or

(d)    providing an internet search engine service, so far as the service is provided to end-users in Australia; or

(e)    providing an app distribution service, so far as the service is provided to end-users in Australia; or

(f)    providing a hosting service, so far as the service hosts material in Australia; or

(g)    providing an internet carriage service, so far as the service is provided to customers in Australia; or

(h)    manufacturing, supplying, maintaining or installing any of the following equipment:

(i)    equipment that is for use by end-users in Australia of a social media service in connection with the service;

(ii)    equipment that is for use by end-users in Australia of a relevant electronic service in connection with the service;

(iii)    equipment that is for use by end-users in Australia of a designated internet service in connection with the service;

(iv)    equipment that is for use by end-users in Australia of an internet carriage service in connection with the service.

135 Sections of the online industry

(1)    For the purposes of this Division, sections of the online industry are to be ascertained in accordance with this section.

(2)    For the purposes of this Division, each of the following groups is a section of the online industry:

(a)    the group consisting of providers of social media services, so far as those services are provided to end-users in Australia;

(b)    the group consisting of providers of relevant electronic services, so far as those services are provided to end-users in Australia;

(c)    the group consisting of providers of designated internet services, so far as those services are provided to end-users in Australia;

(d)    the group consisting of providers of internet search engine services, so far as those services are provided to end-users in Australia;

(e)    the group consisting of providers of app distribution services, so far as those services are provided to end-users in Australia;

(f)    the group consisting of providers of hosting services, so far as those services host material in Australia;

(g)    the group consisting of providers of internet carriage services, so far as those services are provided to customers in Australia;

(h)    the group consisting of persons who manufacture, supply, maintain or install any of the following equipment:

(i)    equipment that is for use by end-users in Australia of a social media service in connection with the service;

(ii)    equipment that is for use by end-users in Australia of a relevant electronic service in connection with the service;

(iii)    equipment that is for use by end-users in Australia of a designated internet service in connection with the service;

(iv)    equipment that is for use by end-users in Australia of an internet carriage service in connection with the service.

136 Participants in a section of the online industry

For the purposes of this Division, if a person is a member of a group that constitutes a section of the online industry, the person is a participant in that section of the online industry.

51    The “[s]tatement of regulatory policy”, at s 137(1), provides that Parliament’s intention is for “bodies or associations that … represent sections of the online industry should develop codes … that are to apply to participants in the respective sections of the industry in relation to their online activities”. I accept X Corp’s submission that this assumes the distinctness of those sections, noting that s 137 also evidences Parliament’s intention that codes are preferred over standards, here, the SMS Code extensively regulates the X Platform.

52    Thereafter, s 138 provides for illustrative examples of matters which may be dealt with by industry codes and industry standards which include, inter alia, at subss 138(3)(a) to (c):

(3)    The examples are as follows:

(a)    procedures for dealing with class 1 material, or class 2 material, provided on a social media service;

(b)    procedures for dealing with class 1 material, or class 2 material, provided on a relevant electronic service;

(c)    procedures for dealing with class 1 material, or class 2 material, provided on a designated internet service;

53    Provision is thereafter made for enforcement with respect to each of the industry codes and standards.

54    The examples given in s 138 as to matters that may be dealt with by industry codes and standards, identify, with the chapeau emphasising that “the applicability of a particular example will depend on which section of the online industry is involved”: s 138(2). Similarly, the legislative scheme’s industry-driven creation of the codes, by operation of ss 140(1) and 141(1), enables the development of industry codes by “a body or association [that] represents a particular section of the online industry”, with a code to “appl[y] to participants in that section” and deal with “matters relating to the online activities of those participants”. Further, s 140(1)(f) requires that the relevant “body or association” must have published the code and “invited participants in that section of the industry to make submissions to” it. This assumes the distinctness of the section of the online industry to have been consulted. As submitted by Senior Counsel for X Corp, whilst it is not an inevitable way of viewing the industry (by this three strand categorisation), it is a legislative creation for a functional reason: It allows for codes and standards to be developed for particular sections in consultation with particular bodies.

55    By operation of ss 143 and 146, a code or standard may be enforced only against a person who is a participant in a particular section of the online industry and contravenes the code or standard that applies to participants in that section. Again, the text emphasises that a code or standard binds participants only in a single, distinct section of the industry. If overlap between sections of the industry were possible, providers’ obligations would be left uncertain and potentially conflicting.

56    Section 145(1) enables, in limited circumstances, the determination of a standard that “applies to participants in a particular section of the online industry” in three circumstances:

(1)    if and only if the relevant section of the industry has failed to develop an acceptable code (s 145(1)(a)); or

(2)    the Commissioner has published a notice in relation to a particular section of the online industry that is not represented by a body or association and no such body or association comes into existence within the period specified in the notice (s 145(1)(b)); or

(3)    the Commissioner is satisfied that an industry code “that applies to participants in a particular section of an online industry has been registered for at least 180 days”, is deficient, the Commissioner has given the body or association written notice of the deficiencies required to be addressed within a specified period and the period ends (s 145(1)(c)).

57    Further, s 145(1B) states that the Commissioner “must not determine a standard … that applies to participants in a particular section of the online industry unless” (my emphasis) satisfied it is necessary to “determine a standard in order to: (a) provide appropriate community safeguards … relating to the online activities of those participants; or (b) otherwise regulate adequately participants in that section of the online industry.”

58    The culmination of these limitations in s 145 reveal the purpose of the Act: The primacy of codes over standards and the significant limitation on the ability of the Commissioner to override industry-driven codes by the creation of standards. The effect of the section reveals that there was no intended overlap between “social media services” and “relevant electronic services” because the Commissioner would be required to consider the impact of a standard on multiple registered codes and give notice to and consult with multiple sections of the “online industry” in relation to a proposed standard.

59    Further, there is nothing in the Act to account for two conflicting codes or two conflicting standards. Section 150 only stipulates that industry standards prevail over inconsistent industry codes. Section 150 only makes provision for inconsistency between a code and a standard:

150 Industry standards prevail over inconsistent industry codes

If an industry code is:

(a)    registered under this Division; and

(b)    applicable to a person;

the code has no effect to the extent to which it is inconsistent with an industry standard that is:

(c)    registered under this Division; and

(d)    applicable to the person.

60    This provision aids X Corp’s construction. The provision does not contemplate the necessity for the resolution of any conflict as between two codes or two standards. It assumes that a provider would have one industry designation and therefore not be able to be the subject of more than one code or standard.

The wider context: Statutory purposes - consultative co-regulatory model and certainty of applicable codes and standards (and avoiding overlap)

61    A review of the legislative history and context of the Act reveals that the purposes of the Act include to allow for a largely industry-driven, co-regulatory model where codes are created by industry and standards are only created in limited circumstances. It appears that this limitation (on the ability for the Commissioner to create standards) is to encourage the industry-driven, co-regulatory model but also to ensure certainty as to which codes and standards apply to which forms of services.

62    The Commissioner submitted that her reading does not undermine a consultative-driven approach because the provider can simply form part of more than one section of the online community and engage through membership of the different industry associations or bodies. It was submitted that this is still consistent with the co-regulatory model. The Commissioner submitted that, for example, DIGI submitted both a draft SMS Code and a draft RES Code after having been invited to do so as a representative body or association of both of those particular sections of the online industry.

63    However, the legislative landscape creates a clear demarcation between sections of the online industry, the codes that they create and the very limited circumstances in which the Commissioner may in effect override the industry self-regulation to create standards. The apparent purpose, as revealed from the text and structure of the Act, is to achieve certainty, by the creation of separate industry spheres, that avoids (largely self-regulating) service providers being required to comply with different (and potentially conflicting) codes and standards where there is not a clear path to resolve conflicts under the Act. The Explanatory Memorandum emphasised, in relation to s 135, that “the definition of ‘industry sections’ is important in ensuring that it is clear for compliance and enforcement purposes to whom a particular code or standard applies” (at 135). It also explained that the “sections of the online industry are identified [in s 135] so that codes will be developed by, and applied to, relevant sections of the industry and requests by the Commissioner (clause 141) for codes may be directed to representatives of relevant sections”.

64    Here, the X Platform is a “social media service” as defined in ss 5 and 13 of the Act. It follows, that in relation to X Corp’s provision of the X Platform, X Corp is within the section of the online industry specified in s 135(2)(a) as “providers of social media services” and is, by s 136, a “participant” in that section of the online industry. X Corp, as a “participant” was involved in the creation of the SMS Code. I accept X Corp’s characterisation of the facts that the RES Standard has been made by the Commissioner under s 145 as a standard applicable to participants in a different section of the online industry, that are specified in s 135(2)(b) as “providers of relevant electronic services”. The Commissioner’s construction would not sit comfortably with the Act’s structure. It would allow the Commissioner, as has happened here, to create a standard and apply it to a provider who is already the subject of another industry sector code and effectively bypass the consultative industry-led model.

The wider context: The claim of self-selection

65    With respect to the Commissioner’s claim that such a construction would lead to “self-selection”, I do not accept the Commissioner’s submission that it would not be consistent with the overarching purpose of the Commissioner’s power for it to be limited by a participant in a particular section of the online industry “self-selecting” which code or instrument “it would like to be subject to”. The underlying premise is misconceived. A participant cannot “self-select”: The Act defines the sections of the industry (ss 13, 13A, 14). The Act gives additional guidance, to the extent of potential overlap in ss 13(1)(a)(i) and 14(1). The Act also allows for further future refinement and specificity under ss 13(1)(b), 13A(1)(g) and 14(2). The legislation requires certainty by characterisation. The enforcement powers require the same. Characterisation is not something that can be “self-selected” but is a question of objective determination.

66    Further, I do not accept the Commissioner’s submission that it would be consistent with the “overarching purpose” that the Commissioner “can make a determination which applies to all providers of relevant electronic services in their provision of those services, irrespective of their participation in multiple sections of the online industry”. First, the Commissioner’s power under s 145 is very confined. This is so despite the alleged need for “flexibility” and the need to “futureproof” the legislation. Secondly, it remains open for the Commissioner, within the bounds of its power under s 145, to make a standard applicable to an industry, in this case the “social media services” industry, despite the fact that it has approved a code (under s 145(1)(c)). Thirdly, it always remains open for the Commissioner to re-define aspects of a part of the industry under ss 13(1)(b), 13A(1)(g) and 14(2). Fourthly, it appears entirely inconsistent with the participatory, industry-driven, co-regulatory model, for the Commissioner to be able to bypass an industry-generated code by declaring that a standard applies to participants in more than one industry already the subject of the industry-generated code.

The legislative history

67    A review of the legislative history reveals that the Act consolidated a number of laws directed to online safety in Australia, including by replacing the scheme in Schedules 5 and 7 of the Broadcasting Services Act 1992 (Cth) and as contained in the former Enhancing Online Safety Act 2015 (Cth). The new legislation was informed, in part, by the observations made by Ms Lynelle Briggs AO, in her report of October 2018, tabled in Parliament in February 2019, entitled Report of the Statutory Review of the Enhancing Online Safety Act 2015 and the Review of Schedules 5 and 7 of the Broadcasting Services Act 1992 (Online Content Scheme) (the Briggs Report). The history reveals that the three categories of services existed in the former schemes, as did the co-regulatory model. Further, a review of the Enhancing Online Safety Act 2015 (Cth) revealed a difference in structure that is of some relevance. The definitions of each of the three services are very similar, save that the definition of “relevant electronic service” was contained in s 4, along with other definitions, and the definitions of “social media service” and “designated internet service” had their own definitions side-by-side in former ss 9 and 9A respectively. Further, under that earlier Act, provision was only made for “basic online safety requirements” with respect to social media services (see Pt 4, Div 1) as opposed to each of the three services in the current Act. However, otherwise that former Act recognised the tripartite categorisation of “service” in material respects.

68    To the extent that the Commissioner sought to deploy aspects of the Briggs Report to inform the relevant historical context of the current Act, little can be gained from it. It is true that Ms Briggs did recognise that the prevailing co-regulatory model was insufficient to address threats of harm and one of the means for addressing this deficiency was to give the Commissioner a power to determine industry standards, if code coverage was deficient. However, the fact is, that despite the limitations on the powers of the Commissioner, as identified generally by the Briggs Report, Parliament maintained in the Act, the primacy of the industry-codes and maintained significant limitations on the ability of the Commissioner to create standards. However, no aspect of the Briggs Report, that I was taken to or otherwise, points to a system where a provider can be defined as within more than one service.

69    For these reasons, X Corp’s interpretation is to be preferred. By reason of this conclusion, there is no need (and it would be inappropriate to do so) to consider the further issues proposed by the parties.

Conclusion

70    For these reasons, it is not possible for X Corp to be both a “social media service” and a “relevant electronic service” under the Act and as a consequence I will declare that the Online Safety (Relevant Electronic Services – Class 1A and Class 1B Material) Industry Standard 2024 (Cth) does not apply to X Corp in relation to its provision of X, which is a “social media service” as defined in s 13 of the Online Safety Act 2021 (Cth).

71    No application was made by X Corp for costs as part of its Originating Application, nor at the hearing, as a consequence the Court makes no order as to costs.

Associate:

Dated:    12 August 2026