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In a significant legal reversal, a national review panel has overturned a prior decision that prevented viewers in Australia from accessing video footage of the shooting incident involving influencer Charlie Kirk. The appeal was initiated by Elon Musk's social media platform, which contested an order sought by the online safety regulator.

Background on the Case and Classification Ruling

Following the fatal shooting of Charlie Kirk at a US campus in last year, the eSafety commissioner applied to the review board to assess and rate the circulating video. It first determined the content was "unable to be classified", a designation that allowed the commissioner to order social media companies to restrict access to the posts for an Australian audience.

Elon Musk's company challenged the decision for a pair of videos related to the Kirk incident. Additionally, it contested a similar ruling on a separate video—showing the attack on Iryna Zarutska on a North Carolina train—which had likewise been classified as "unacceptable for distribution".

The Platform's Case and Board's Decision

In its appeal, X contended that the Kirk video contained only brief violence with the weapon not shown. It was argued the recording was low-quality and the focus shifted rapidly from the victim to the bystanders.

X maintained the footage was not overly graphic, gratuitous, or objectionable, stating it served as a factual documentation of "a significant incident of public importance that generated extensive public discourse". X even compared the video and the well-known recording of President John F. Kennedy's assassination.

The majority of the classification panel ultimately agreed that, "despite the terrible nature of the event," the video did not reach a level that was gratuitous, exploitative or offensive enough to warrant a 'refused classification' rating. However, they noted that a longer or clearer version with different editing might have resulted in a different ruling. As a result, the panel revised the rating of the videos to R18+.

The Minority Viewpoint

A minority on the panel disagreed, contending the post was "a shareable video for the probable aim of entertainment and/or benefit (such as likes, shares, or views)". They also argued the parallel with the JFK assassination tape was invalid, as the Kennedy video was released years after the assassination, "once emotions around the matter had subsided".

Response Following the Outcome

In a statement on its official policy channel, the platform expressed approval of the decision.

"We challenged this case to defend free speech and the importance of access to information about issues of public interest. Our commitment remains committed to protecting these principles."

A spokesperson for the eSafety commissioner also welcomed the ruling, but noted that the revised classification now means platforms "have obligations to ensure R18+ material being displayed to users under 18".

Recent Developments on Sensitive Footage

In related news, the regulator has not issued take-down orders to platforms this week regarding disturbing videos from the Sydney beach incident shared across social media. The regulator stated that while the images were distressing, they had not met the required standard for a "refused classification" rating.

As an alternative, the companies have been advised to use sensitive content labels and screens, such as obscuring the image, on this material in accordance with their own content policies.