@elonmusk Is Right - This Australia Thing Is Vital

Do governments have power over the globe, or just their own countries?

It’s entirely true that Elon Musk is a centibillionaire currently telling the Australian Government that they can fuck off. It’s also true that if Elon Musk were of my level of wealth - or perhaps above it and into positive territory - he should be telling the Australian Government to fuck off.

This also applies to the European Union and that idiocy called the right to be forgotten which they’ve been plaguing Google with. Also to any other such attempts at extraterritoriality. Governments do indeed get to govern the places they’re governments of. They do not get to rule everyone else - the correct response to attempts to do so is fuck off.

So, Musk is right here:

What this is about doesn’t really matter. But, v quickly, that attack on the Armenian Church bishop is online. It’s also, obviously, highly violent stuff. You’re not allowed to show highly violent stuff in Oz, so the Oz government insist it be taken down. Fair enough - they’re the government of that place. But they are then demanding further:

On Monday evening in an urgent last-minute federal court hearing, the court ordered a two-day injunction against X to hide posts globally….

Oz is demanding that the imagery be scrubbed from the world, not just that part of it subject to the government of Oz. Leading to:

Australia’s prime minister has labelled X’s owner, Elon Musk, an “arrogant billionaire who thinks he is above the law”

And

Anthony Albanese on Tuesday said Musk was “a bloke who’s chosen ego and showing violence over common sense”.

“Australians will shake their head when they think that this billionaire is prepared to go to court fighting for the right to sow division and to show violent videos,” he told Sky News. “He is in social media, but he has a social responsibility in order to have that social licence.”

To which the correct response is that “Fuck off”.

For example, I am a British citizen (and would also be an Irish one if that country ever managed to get up to speed on processing foreign birth certificates) and live within the EU. Australian law has no power over me - great great granny emigrated from Oz having experienced the place after all. It’s entirely sensible that I be governed by whatever fraction of EU law I submit to, there are aspects of British law I am subject to as well (not that I have any intention of shagging young birds - or likelihood - these days but how young they can be is determined not just by the local age of consent but also by British law, even obeying the local age where I am could still be an offence in British law). But Australian law? Well, you know, fu.. … .

There is more to this though than just insisting that the convicts can get over themselves. We have another whole area of law which comes into play here - libel.

No, not this specific case, but where which libel law applies. As it happens one of the grand examples of it concerns Australia as well.

So, imagine, there’s a potential libel out there. Whose laws apply as to whether it is a libel or not? Where would the case be heard? Whose sets of damages would apply? The answer is, where the libel is *read*.

No, not where the writer is. Not where the server is, the legal form of the platform or anything other than where was the reader of the potential libel at the time it was read (even to the point that if I, a Brit, read it outside Britain then it’s the law where I read it, not my citizenship nor even the location of my reputation, that matters).

This was indeed tested. Dow Jones wrote something that could be thought of as libellous to a bloke living in Australia. Basically, claimed he was a spiv. As far as anyone knows - no proof was offered to the contrary at least - the bloke himself was the only bloke in Australia who read the piece. Implications of spivvery can indeed be libellous so he started to sue.

Dow Jones pointed out this was published in the US, by a US corporation, on a US server and so on. The answer became, well, it was read in Oz so Oz law applies.

Dow Jones settled.

This is how libel in common law has generally worked too. As Rachel Ehrenfeld found out. Her book suggested that someone was a bit naughty. The book was not published in England (note, England and Wales is a different legal system than Scotland - there is no “British” law) but a few copies (perhaps 20? from memory) were privately imported. That’s enough to bring that claim under English libel law - it was available to read in England. There were follow ons to that, the judgement was considered so outrageous in the US that now American courts don’t even have to enforce English libel judgements.

But that basic principle still stands - where the alleged libel is read determines the legal jurisdiction any arguments over the libel take place in.

There’s another example concerning a pop star, his husband, a friend and a paddling pool of olive oil (virgin, extra or not, is unrecorded). A superinjunction (which is an injunction where no one is to know that there is an injunction saying no one can talk about this - merely you may not talk about this is just an injunction) was taken out in the English courts and jurisdiction. At which point a Scottish newspaper gaily published the allegations in full. Because the pop star’s own lawyers had forgotten that Scotland is that different legal jurisdiction.

But! The newspaper made absolutely certain no copies of that newspaper crossed the border - and also were very, very, strict about geolocation of who could read the piece. No one from England and Wales could - as we know because so many friends tried of course.

Now this does throw up some weirdnesses. It means that anything we write upon this internet is subject to the laws of where it is read, not where it is written. France has laws against insulting public servants. So, insisting that the under-secretary at the Ministry of Garlic is a smelly poo (which he is, of course, he’s French*) is an offence under French law. If anyone in France reads this then I have committed an offence under French law and could - possibly, at a stretch, should - be done for it.

This is then true of Russian law, that of Burkino Faso and Ascension Island. That’s just the way it works - the law that applies is the law of the place it is read, not where it is written.

Well, OK. There has to be some definition here. That the government of a place has jurisdiction over what may be said in that place seems sensible enough at least as a starting point.

But if this is true - and don’t forget that Australian law does operate on this principle in that libel instance - then what may be said in a place is the right of the government of that place. Extraterritoriality doesn’t apply. That Australian government cannot both insist that something written in New York and read in Oz is bad and also that something read in New York comes under Australian law. For if that’s true, that second, then that first cannot be true - it must be under New York law, what was read in New York.

One of the British Prime Ministers would call this cakeism and he’d be right to do so. If you claim jurisdiction over what is said outside, but read inside, your area of governance then so too does every other government have that same right. Whether the attack on the bishop is shown in the US or not is a matter of US law.

Or - and given that it’s Albanese being talked about we knew that this was going to be so - the correct answer is to tell the Australian Prime Minister to fuck off. You get to decide what people read and see in Australia. Other politicians get to decide for the other places.

Any other solution would mean that every government everywhere gets to decide upon what can be read everywhere. And who wants what we can read or say in Britain, the US, the EU, to be subject to North Korean law? For that is the claim that Albanese is making - which is why he can fuck off.

*No, shut up, today’s St George’s Day