Background
X Corp sought a declaration that the Online Safety (Relevant Electronic Services – Class 1A and Class 1B Material) Industry Standard 2024 (Cth) did not apply to its provision of the X platform. The parties agreed that X is a “social media service” under s 13 of the Online Safety Act 2021 (Cth), and X was already subject to the registered Social Media Services Online Safety Code.
The eSafety Commissioner contended that X could also be a “relevant electronic service” under s 13A because of features enabling communications between users. On that construction, the relevant electronic services standard applied to X and, under its cl 5(2), displaced the social-media code. X argued that the Act creates mutually exclusive service categories for this purpose.
The Court’s Holding
Raper J allowed X Corp’s application and declared that the relevant electronic services standard does not apply to X Corp’s provision of X. The Court held that X could not be both a social media service and a relevant electronic service under the Act.
The text and structure of the Act required objective characterisation into distinct industry sections. The “sole or primary purpose” criterion in the social-media definition addressed the likely overlap with messaging functions, while the Act’s code-and-standard framework assumed distinct industry sections and did not provide a mechanism for resolving conflicting obligations. The Court therefore preferred X’s construction and did not decide its alternative challenges to the standard’s validity. No costs order was made.
Key Takeaways
- A platform characterised as a social media service cannot also be treated as a relevant electronic service under this statutory scheme.
- The Commissioner’s relevant electronic services standard does not apply to X’s provision of the X platform.
- The Act preserves an industry-led co-regulatory model and confines the circumstances in which standards may displace codes.
Why It Matters
The decision limits the eSafety Commissioner’s ability to apply a standard made for one statutory section of the online industry to providers already regulated as another section. It also rejects the proposition that overlapping platform features alone permit dual categorisation.
For online platforms, the case emphasises that applicable obligations turn on statutory characterisation of the service, rather than a provider’s choice or the regulator’s preferred regulatory instrument.