eSafety sends Telegram a message

In late July, the eSafety Commissioner commenced action in the Federal Court of Australia against Telegram, a popular cloud-based messaging app, for breaching s146 (1) of the Online Safety Act 2021 (Cth) for its alleged failures to comply with provisions of the Online Safety (Relevant Electronic Services – Class 1A and Class 1B Material) Standard 2024. The eSafety Commissioner alleges multiple failures by Telegram, including failing to investigate and remove identified Class 1A(b) pro-terror material. Telegram also allegedly failed to notify end-users of its response to their reports about the pro-terror material. The eSafety Commissioner is seeking pecuniary penalties.  

Telegram has history here. In May this year, a Western Australian man lost his appeal in the Western Australian Court of Appeal against his three-year sentence for the dissemination and transmission of violent and extremist content on Telegram and Instagram.  

Most of the man’s offending took place on Telegram and involved the dissemination of hundreds of written and audio posts containing grossly offensive material that was violent and extremist. The man (whom we’ve chosen not to name) also posted violent extremist video material to a public Telegram group. His recent appeal against his sentence was refused by the court, partly on account of the serious risks associated with the dissemination and transmission of the material, which the court regarded as occurring in an environment that could contribute, in the words of the court, to 'a groundswell of hatred which eventually results in the commission of actual violence or terrorism towards certain groups'.  

Australia has some of the strongest anti-terrorism laws in the world, encompassing a comprehensive range of offences under Commonwealth and State criminal laws and other restrictions under the Online Safety Act 2021, the  Classification (Publications, Films and Computer Games) Act 1995, the Broadcasting Services Act 1992, and the Telecommunications Act 1997 and related legislative instruments. Australia criminalises the use of a carriage service to commit terrorism offences, including offences for using a carriage service in a way that reasonable persons would find offensive in contravention of s474.17(1) of the Criminal Code and for transmitting violent extremist material using a carriage service, contrary to s474.45B(1) of the Criminal Code. The maximum penalty for each offence is five years imprisonment. There are also direct obligations on carriers, carriage service intermediaries and carriage service providers to prevent the use of their networks and facilities in the commission of offences under Commonwealth, State and Territory laws. 

Most of Australia’s anti-terrorism laws were enacted over the two-and-a-half decades since the terrorist attacks on the United States on September 11, 2001. Australia has not wavered in its strong stance on terrorism and terrorism-related material. Australia started directing regulation towards preventing violent, extremist content reaching Australians in the late 1990s, before significant legislative change was introduced in the wake of the Christchurch terror attack in 2019. Further amendments around hate symbols and other measures followed in 2023. However, changes in the communications and media landscape mean that the job of detecting and removing pro-terror material is getting harder. With artificial intelligence able to create deepfake material with ease, in addition to the volume of materials being disseminated and transmitted on services such as Telegram, law enforcement and regulators face significant challenges. 

Australia has been unequivocal about its crackdown on abhorrent material, especially on child abuse and pro-terror material, but some online services seem to be responding with indifference and inaction to the threat of regulation. As technology rapidly develops, lawmakers and regulators are working up a sweat in the effort to keep pace. 

References:

Legal proceedings involving eSafety: https://www.esafety.gov.au/industry/legal-proceedings-involving-esafety 

Online Safety Act 2021 (Cth): https://www.legislation.gov.au/C2021A00076/latest/text 

Online Safety (Relevant Electronic Services—Class 1A and Class 1B Material) Industry Standard 2024: https://www.legislation.gov.au/F2024L00711/asmade/text 

Hoolash v The King: [2026] WASCA 61: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/wa/WASCA/2026/61.html#fn1 

Classification (Publications, Films and Computer Games) Act 1995: https://www.legislation.gov.au/C2004A04863/latest/text 

Broadcasting Services Act 1992 (Cth): https://www.legislation.gov.au/C2004A04401/latest/text 

Telecommunications Act 1997 (Cth) - Part 14: https://www.legislation.gov.au/C2004A05145/latest/text 

Criminal Code Act 1995 (Cth): https://www.legislation.gov.au/C2004A04868/latest/text/3 

Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth): https://www.legislation.gov.au/C2019A00038/asmade/text 

The Christchurch Call: https://www.christchurchcall.org/ 

Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act 2023 (Cth): https://www.legislation.gov.au/C2023A00113/asmade/text