The eSafety Commissioner has criticised an “illusory” claim by Elon Musk’s X that the social media platform’s refusal to take down clips of a Sydney bishop being violently stabbed was in the name of free speech.

The internet watchdog has sued X Corporation in the Federal Court after clips of Bishop Mar Mari Emmanuel being stabbed during a live-streamed sermon on April 15 remained on the platform for Australian users to see.

The attack led to violent riots outside the Christ the Good Shepherd church in Wakeley and a 16-year-old boy being charged with a terrorism offence.

On Friday, the commissioner’s barrister Tim Begbie KC said X had claimed free speech both in court and through its policy promising that the “posts must continue to flow”.

“The fact is that that stance is in large measure illusory,” he told Justice Geoffrey Kennett.

X’s own policies permitted the platform to take down posts globally and it had done so when it wanted, Mr Begbie said.

“It really doesn’t lie well in X’s mouth to say we’re a platform of ultimate free speech and we stand against global removal,” he argued.

Swiftly after the attack, the commissioner sent a notice to X ordering the platform to take all reasonable steps to remove the stabbing video.

While the company blocked Australian users from viewing the clip, those who used virtual private networks (VPN) could circumvent this measure and view the material, the Federal Court was told.

There were still 65 websites through which Australians armed with a simple VPN could view the violent clip, Mr Begbie said.

“(The company’s) real position is this – X says that reasonable means what X wants it to mean,” he said.

“Global removal is reasonable when X does it because X wants to do it, but it becomes unreasonable when X is told to do it by the laws of Australia.”

The commissioner is seeking a temporary injunction ordering X to block the 65 websites globally for Australian users at least until Justice Kennett oversees a final hearing to determine whether the social media platform breached any laws.

Mr Begbie said his client did not seek to take down video footage showing up until the moment of the stabbing or posts discussing the incident.

Rather, the commissioner was only looking to block clips of the bishop being repeatedly stabbed in the head and people screaming in the church.

“We are really, truly talking about that graphic few seconds of footage and audio,” Mr Begbie said.

Staff at the eSafety Commissioner had been able to get around X’s geo-block quite easily and watch the violent video, including through a child’s social media account, the court was told.

The company had taken further steps to block the content from Australian viewers after the internet watchdog pointed this out, Mr Begbie said.

“To say that the geo-blocking system has holes in it as a way of stopping any end user in Australia accessing those URLs is a profound understatement,” he said.

X’s lawyers are seeking to block any further injunctions, claiming all reasonable steps had already been taken to remove the video.

In a separate attack on the validity of the notice from the internet watchdog, X says the commissioner took into account irrelevant information – that the attack had been declared a terrorist attack – while also failing to consider the relevant code and guidelines.

The hearing continues.

This post was originally published on Michael West.