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The Vaccine Narrative Is as Leaky as the Vaccines

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Let’s start with two simple questions. If regulators had the information available to them of the leakage between Covid-19 efficacy rates in controlled trials and their effectiveness in the real world, would they still grant emergency use authorization? Would their legal framework permit them to do so?

Remember, all laws serve a dual purpose. On the one hand, they are permissive and enabling, granting powers to do certain things. On the other, they are limiting and restrictive, ring-fencing what may lawfully be done even by the state.

Second, is Denmark being ruled by an anti-vaxxer government and health authority? From July 1 Denmark, which has an excellent health infrastructure including data collection, banned under-18s from being vaccinated and in mid-September the ban was extended to boosters for under-50s, other than in exceptional circumstances for immunocompromised and high-risk individuals in both cases.

The explanation offered by the health authorities is interesting both for what they said and what they did not say. They anticipate a rise in Covid-19 infections over autumn and winter and “aim to prevent serious illness, hospitalisation and death.” This risk applies to 50-year olds and above and not those younger. Because the vaccines are not meant to prevent infection, they will no longer be offered to the under-50s.

However, governments don’t ban products merely because they are not beneficial. Bans apply only to products that inflict harms. So the unstated reality is the benefit: harm ratio is no longer favorable. The really interesting question therefore is: why don’t they say so? The empirical data from around the world demonstrates negligible to negative vaccine effectiveness for healthy under-50s and greater risk of serious adverse events. Denmark’s decision marks official if implicit acknowledgment that harms are greater than benefits.

Baffling Origins of Lockdown

The lockdowns across the Western world remain, to me, inexplicable and baffling. The abandonment of a century’s worth of cumulative scientific knowledge and global and national pandemic preparedness plans were based neither on new science nor emerging data.

Rather, they were based firstly on apocalyptic modelling using flawed assumptions and secondly on dubious data from China whose authoritarian policies played to innate instincts in our own health bureaucrats and politicians, cheered on by the mainstream media. In a further nod to anti-scientific groupthink conformism, critical and contrarian voices within the health and political establishments were silenced and exorcised. Outside government, they were vilified and expelled from the public square in active collusion with the social media tech giants.

In February 2020, when the cruise ship Diamond Princess docked in Yokohama with 3,711 people on board, Kentaro Iwata, an infectious diseases expert at Kobe University, described it as a “Covid-19 mill.” Outbreaks seed easily on cruise ships because of the high numbers of susceptible elderly passengers living and socializing in confined quarters.

Even under these worst possible conditions, under one-fifth of the captive population was infected, a small number of the infected died and 98.2% recovered. Using age-adjusted data, Oxford University’s Centre for Evidence-Based Medicine estimated the infection fatality rate (IFR) of 0.5% and a case fatality rate (CFR) of 1.1% on the Diamond Princess and, as of March 26, 2020, a global IFR of approximately 0.20% (compared to the seasonal flu’s 0.1% and the Spanish flu’s >2.5% which killed mostly people in the 20–40 age bracket). Reassuringly, even for the over-70s without comorbidities, the IFR was below 1%.

All this ‘bullet proof’ data was thrown out in favor of completely unreliable data and fake videos from China that were then fed into mathematical modelling to produce apocalyptic scenarios that in turn were treated as forecasts by the media and governments. Madness.

India’s Experience: Vaccines Are Not Necessary for Beating Back Covid

India’s experience in mid-2021 proved that vaccines are not necessary for rapid mass recovery from a virulent Covid wave. Anyone who has followed the Covid narrative will remember the horrific pictures in spring-summer 2021 with bodies floating ashore on riverbanks and piling up in cremation grounds. The gradient was broadly similar during the curve’s ascent and descent, with the death rate reaching 1.06 per million people on April 20, peaking at 2.98 on May 21 and 23 and falling back to 1.00 on June 24 (Figure 1). On those three dates India’s full vaccination coverage was 1.26%, 2.96% and 3.53% of the population, respectively.

People questioned the reliability of the data, openly asserting a vast undercount in order to cushion the political embarrassment. Knowing something of India, I disagree and noted more than a hint of racism in the coverage. No matter. Even if the authorities deliberately suppressed the rising numbers of dead, it would be absurd to suggest they did the same with the downward numbers. The symmetrical rise and fall is consistent with the experience of most countries with successive waves of the virus. Whatever else might explain the fall, it certainly wasn’t high vaccination coverage. Herd immunity to the then-dominant Delta variant through a mix of uncontrolled infections and modest vaccination, possibly.

Another contender for the explanation is the widespread use of ivermectin. Mid-crisis in May last year, the state government of Uttar Pradesh (India’s most populous state with 200 million people!), boasted it had been the first to authorize large-scale prophylactic and therapeutic use of ivermectin against Covid-19 in May–June 2020. Studies were confirming that “the drug helped the state to maintain a lower fatality and positivity rate as compared to other states.”

A meta-analysis by Andrew Bryant and Tess Lawrie in the American Journal of Therapeutics of 24 randomized control trials (RCTs) in 15 countries (one of which was subsequently pulled as possibly fraudulent) concluded that ivermectin significantly helps to prevent and treat Covid-19 and, with a 62% mortality reduction, can potentially save millions of lives. They published a follow-up analysis in the same journal that removed the suspect study and the results still showed robust ivermectin efficacy.

An analysis of seven RCTs, covering 1,327 patients, by Swedish physician Sebastian Rushworth found “a 62% reduction in the relative risk of dying among Covid patients treated with ivermectin.” A recent large-scale study from Brazil published on August 31 found that, compared to regular users, non-use of ivermectin increased the risk of Covid-related mortality by 12.5 times and dying from Covid by seven times.

Yet for some strange reason, Western health bureaucracies would neither recommend ivermectin – a low cost, off patent and no profit drug for Big Pharma – nor fund a rigorous but fair (that is, not designed to fail) clinical assessment of its efficacy against Covid. It had morphed into Voldermectin: the drug that must not be named.

Global Experience: Vaccines Are Not Sufficient to Beat Back Covid

My earlier articles show why Australia’s Covid numbers this year demonstrate that vaccines are not sufficient to prevent mass infections, hospitalization and deaths either. Steve Kirsch alerted his Substack subscribers on September 17 to an internal report for the governing Liberal Party of Canada back in June. It makes for depressing reading that will come as no surprise to all of us who have grown increasingly cynical about public health authorities and governing elites. The report draws on official Ontario data, is informed by wide international scholarship and emphasizes that the empirical results are in line with trends in other Canadian provinces and countries.

The fully vaccinated show rise in hospital admissions within 5-6 months; the boosted, within two weeks and rising thereafter for several months. Immunity through natural infection can last up to 20 months. Vaccination shows considerable benefits to over-70s and some benefit to over-60s but virtually no benefit to under-60s with respect to hospitalization and mortality rates. By contrast, adverse events are concentrated in the 18–69 age groups, and especially, in order of most to least, in the 40–49, 50–59 and 30–39 age groups.

Because the “abundance of data” demonstrates that vaccines do not prevent infection, transmission, hospitalization and deaths for the under-60s, “public health policy tools such as, mass vaccination campaigns, mandates, passports and travel restrictions need to be re-evaluated for relevance.” Factoring in also “known adverse events and unknown long-term effects,” the “empirical evidence investigated in this report … does not support continuing mass vaccination programs, mandates, passports and travel bans for all age groups.” The government has sat on this report since June – what a surprise.

Meanwhile there continues to be very little evidence in the real world that countries with high rates of multiple vaccine doses suffer correspondingly lower rates of Covid-19 mortality (Figures 2 and 3). In the two charts, Chile has both the highest booster rollout and the highest Covid-related death rate per capita, while India has the lowest booster coverage yet the second lowest mortality rate.

Some experts point to a worrying trend of rising excess mortality among under-14s in 28 European countries. An article in Vaccinedownloaded more than 110,000 times in preprint – seems to suggest, albeit tentatively, that added risks of serious adverse events are 2.4 and 4.4 times higher than the reduced risk of hospitalization for Moderna and Pfizer vaccines, respectively. Cautioning that the harm-benefit ratio will vary with populations at different Covid risk profiles and in different time periods from the Moderna and Pfizer studies they analyzed, the authors conclude with the need for large, randomized trials to come to robust conclusions. It would help if Moderna and Pfizer would release the granular, individual level data in their possession.

In a follow-up note on Substack, two of the study’s authors note that the normal rate of adverse events for other vaccines is 1-2 per million. The swine flu vaccine (1976) was pulled after it was associated with Guillain-Barre Syndrome at a 1 in 100,000 rate. By comparison, the Pfizer and Moderna clinical trials show 125 adverse events per 100,000 vaccinated people, while preventing between 22-63 hospitalizations.

Another new study of almost 900,000 5-11-year-old children in North Carolina, published in the New England Journal of Medicine, adds to concerns that vaccines don’t just lose their effectiveness in just a few months; they also destroy natural immunity against reinfection severe enough to put them in hospital.

Panels C and D (the study’s authors use “Panel” rather than “Chart”) clearly show that among people infected by the Delta variant, protection against reinfection of the unvaccinated lasts longer than of the vaccinated. The former’s effectiveness was still above 50% eight months later in May 2022 while the latter’s had fallen to zero (Figure 4). But with the Omicron variant, the previously infected are slightly better off vaccinated than unvaccinated after two months (94.3:90.7%) and much better off after four months (73.8:62.9%). The likely, albeit not definitive, explanation is that the vaccines themselves are destroying the protection provided by natural immunity.

Three comments about Panels E and F (Figure 5). First, while the x axis for Panel E is in weeks, Panel F’s is in months. So the first visual impression is misleading. Second, the maximum effectiveness of a vaccine against a reinfection severe enough to require hospital admission is around 88%, reached approximately four weeks after the first dose is administered. By contrast, the initial effectiveness of a previous infection is 100% and remains above 95% (remember the vaccine’s much-touted 95% efficacy rate?) until seven months later.

Third, the effectiveness of a previous infection against reinfection requiring hospitalisation does not decline to the same level as the vaccine’s peak effectiveness until nine months after infection. This is the reality that the CDC denied until recently and used as the justification for discriminating between the vaccinated and unvaccinated for access to public spaces.

Three conclusions follow:

  1. The risk of severe outcomes for children from infection by current Covid variants is low;
  2. The risk of severe adverse reactions from vaccines is higher, meaning vaccination is a net harm for young children – exactly why Denmark has banned them for children;
  3. Exposing healthy children to the risk of infection may be better for both individual and herd immunity than mass vaccinating them.

The FDA is not likely to restore its credibility as the US regulator with the widely ridiculed revelation that the new bivalent boosters were authorized on the basis of trial results from eight mice. Professor Marty Makary from the Johns Hopkins School of Public Health tweeted his concerns about this and also about the announcement of an annual Covid vaccine that is not data-driven and ignores natural immunity as well as the risks of immune imprinting (where the immune system remembers its initial response to infection or vaccination in a way that usually, but not always, weakens the response to future variants of the same pathogen) from a multi-dose vaccination strategy.

From mRNA Vaccine Hesitant to Anti Vaxxer

The Financial Times – as mainstream establishment as they come – recently warned that the US decision to roll out new booster shots without clinical testing on humans – already dubbed the mouse vaccine by some – risks undermining public trust and deepening vaccine hesitancy. “We already have a trust problem in this country and we don’t need to make it worse,” Eric Topol, founder and director of the Scripps Research Translational Institute, said. Yet, even while bemoaning the loss of public trust in health experts and institutions, Topol just couldn’t help himself and smeared the Covid vaccine hesitants and sceptics as “anti-vaxxers, anti-science” people.

He thereby demonstrates precisely the pathology so beautifully described by Julie Sladden in an article in Spectator Australia on September 8. The Tasmanian doctor, “Having probably received more vaccines than most, given I am both a doctor and fairly well travelled,” used to begin her apology for refusing the Covid jab with “‘I’m no anti-vaxxer!’” However, after two years of “government-endorsed segregation and dehumanisation of those who exercised their right to refuse the jab,” she has changed her mind.

If an “anti-vaxxer” is someone who cannot give informed consent to a “vaccine” that fails to prevent infection or transmission, has alarming safety signals, must be taken to earn back the right to live and work in society, for a disease that has a greater-than 99 per cent survivability rate, then “yes,” I’m an anti-vaxxer… My government made it so.

To this we should add the very high likelihood of crossover vaccine hesitancy to other vaccines. In my own case before the pandemic I have dutifully gone in for the annual flu shot strongly recommended for my age demographic. Not any more. The Covid experience killed my trust in the medical and public health establishment and, having done my own research, I now politely decline the annual pre-winter flu shot.

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  • Ramesh Thakur, a former United Nations Assistant Secretary-General, is emeritus professor in the Crawford School of Public Policy, The Australian National University.

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Brownstone Institute

WHO Accords Warrant Sovereignty Concern

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From the Brownstone Institute

BY Ramesh ThakurRAMESH THAKUR 

In agreeing to undertake to implement the WHO advisories, states will be creating a new system of pandemic management under the WHO authority and binding under international law. It will create an open-ended international law obligation to cooperate with the WHO and to fund it.

On 11 March, my article criticizing what appeared to be a slow-motion coup d’état by the World Health Organization (WHO) to seize health powers from states in the name of preparing for, conducting early warning surveillance of, and responding to “public health emergencies of international [and regional] concern” was published in the Australian. The coup was in the form of a new pandemic treaty and an extensive package of more than 300 amendments to the existing International Health Regulations (IHR) that was signed in 2005 and came into force in 2007, together referred to as the WHO pandemic accords.

The two sets of changes to the architecture of global health governance, I argued, will effectively change the WHO from a technical advisory organisation offering recommendations into a supranational public health authority telling governments what to do.

On 3 May, the Australian published a reply by Dr. Ashley Bloomfield, co-chair of the WHO working group on the IHR amendments. Bloomfield was New Zealand’s Director-General of Health from 2018–22 and received a knighthood for his services in the 2024 New Year’s Honours list. His engagement with the public debate is very welcome.

Rejecting the charge that the WHO is engaged in a power grab over states, Bloomfield wrote that as a one-time senior UN official, I “would know that no single member state is going to concede sovereignty, let alone the entire 194 members.”

I bow to the good doctor’s superior medical knowledge in comparison to my non-existent medical qualifications.

Unfortunately, I cannot say the same with respect to reforms across the UN system, or sovereignty, or the relationship between “We the peoples” (the first three words of the UN Charter), on the one hand, and UN entities as agents in the service of the peoples, on the other. On medical and not health policy issues, I would quickly find myself out of my depth. I respectfully submit that on sovereignty concerns, Dr. Ashley may be the one out of his depth.

On the first point, I was seconded to the UN Secretariat as the senior adviser to Kofi Annan on UN reforms and wrote his second reform report that covered the entire UN system: Strengthening the United Nations: An Agenda for Further Change (2002). The topic of UN reforms, both the case for it and the institutional and political obstacles frustrating the achievement of the most critical reforms, forms a core chapter of my book The United Nations, Peace and Security  (Cambridge University Press, 2006, with a substantially revised second edition published in 2017).

I was also involved in a small Canada-based group that advocated successfully for the elevation of the G20 finance ministers’ group into a leaders’ level group that could serve as an informal grouping for brokering agreements on global challenges, including pandemics, nuclear threats, terrorism, and financial crises. I co-wrote the book The Group of Twenty (G20) (Routledge, 2012) with Andrew F. Cooper, a colleague in that project.

On the second point, I played a central role in the UN’s reconceptualisation of sovereignty as state responsibility and citizens as rights holders. This was unanimously endorsed by world leaders at the UN summit in 2005.

On the third point, in Utopia Lost: The United Nations and World Order (1995), Rosemary Righter (the former chief leader writer at the Times of London) quoted Alexander Solzhenitsyn’s description of the United Nations as “a place where the peoples of the world were delivered up to the designs of governments” (p. 85).

So yes, I do indeed know something about UN system reforms and the importance of sovereignty concerns in relation to powers given to UN bodies to prescribe what states may and may not do.

In agreeing to undertake to implement the WHO advisories, states will be creating a new system of pandemic management under the WHO authority and binding under international law. It will create an open-ended international law obligation to cooperate with the WHO and to fund it. This is the same WHO that has a track record of incompetence, poor decision-making, and politicised conduct. The insistence that sovereignty is not being surrendered is formulaic and legalistic, not substantive and meaningful in practice.

It relies on a familiar technique of gaslighting that permits plausible deniability on both sides. The WHO will say it only issued advisories. States will say they are only implementing WHO recommendations as otherwise, they will become rogue international outlaws. The resulting structure of decision-making effectively confers powers without responsibility on the WHO while shredding accountability of governments to their electorates. The losers are the peoples of the world.

A “Litany of Lies” and Misconceptions? Not So Fast.

Bloomfield’s engagement with the public debate on the WHO-centric architecture of global health governance is very welcome. I have lauded the WHO’s past impressive achievements in earlier writings, for example in the co-written book Global Governance and the UN: An Unfinished Journey (Indiana University Press, 2010). I also agree wholeheartedly that it continues to do a lot of good work, 24/7. In early 2020 I fought with a US editor to reject a reference to the possible virus escape from the Wuhan lab because of WHO’s emphatic statements to the contrary. I later apologised to him for my naivete.

Once betrayed, twice shy of the message: “Trust us. We are from the WHO, here to keep you safe.”

Sir Ashley was merely echoing the WHO chief. Addressing the World Governments Summit in Dubai on 12 February, Director-General (DG) Tedros Adhanom Ghebreyesus attacked “the litany of lies and conspiracy theories” about the agreement that “are utterly, completely, categorically false. The pandemic agreement will not give WHO any power over any state or any individual.”

DG Tedros and Sir Ashley do protest too much. If Australia chooses as a sovereign nation to sign them, that does not mean there is no loss of effective sovereignty (that is, the power to make its health decisions) from that point on.

This is why all 49 Republican senators have “strongly” urged President Joe Biden to reject the proposed changes. The expansion of “WHO’s authority over member states during” pandemic emergencies, they warn, would “constitute intolerable infringements upon US sovereignty.” In addition, 22 Attorneys-General have informed Biden that the WHO writ under the new accords will not run in their states.

On 8 May, the UK said it would not sign the new treaty unless clauses requiring transfer of pandemic products were deleted. Under Article 12.6.b of the then-draft, the WHO could sign “legally binding” contracts with manufacturers to get pandemic-related “diagnostics, therapeutics or vaccines.” Ten percent of this is to be free of charge and another ten percent at profit-free prices. In the latest, 22 April draft, this last requirement comes in Article 12.3.b.i in slightly softer language.

The UK wants to retain the right to use British-made products first to address domestic requirements as judged by the government, and only then to make them available for global distribution. The draft, the government fears, will undermine British sovereignty.

On 14 May, five senators and nine representatives from the Australian parliament wrote a formal letter to PM Anthony Albanese expressing deep concern over the likely prospect of Australia signing the accords that “will transform the WHO from an advisory organisation to a supranational health authority dictating how governments must respond to emergencies which the WHO itself declares.” If adopted and implemented into Australian law, they wrote, these would give the WHO “an unacceptable level of authority, power and influence over Australia’s affairs under the guise of declaring ‘emergencies’.”

“Legally Binding” vs “Loss of Sovereignty” is a Distinction without a Difference

They can’t all be part of a global conspiracy to peddle a litany of lies. The WHO is offering up a highly specious argument. Sir Ashley didn’t really engage with the substance of my arguments either. He dismissed criticism of the proposed changes as “an attempt by the WHO to gain the power to dictate to countries what they must do in the event of a pandemic” as a “misconception.”

The G20 Leaders’ Bali Declaration (November 2022, paragraph 19) supported the goal of a “legally binding instrument that should contain both legally binding and non-legally binding elements to strengthen pandemic planning, preparedness and response (PPR) and amendments to the IHR.” In September 2023, the G20 Delhi Leaders’ Declaration (28:vi) envisioned “an ambitious, legally binding WHO” accord “as well as amendments to better implement” the IHR.

Lawrence Gostin, actively involved in the negotiations, was co-author of a report last December that said containing transnational outbreaks under WHO leadership “may require all states to forgo some level of sovereignty.” A joint Reuters-World Economic Forum article on 26 May 2023 stated: “For the new more wide-reaching pandemic accord, member states have agreed that it should be legally binding.”

The WHO itself describes the IHR as “an instrument of international law that is legally-binding on 196 countries.” Last year it published a document that includes section 4.6 on “legally binding international instruments” such as a new pandemic accord.

I get the argument that sovereign states are voluntarily agreeing to this. In terms of legal technicality, it might well be more accurate, as Libby Klein suggests in her draft letter to Australian MPs, to use words and phrases like “ceding autonomy,” “yielding “effective control over public health decisions,” “outsourcing public health decision-making to the WHO,” or “offshoring our public health decision-making.” This is the legalistic distinction that Bloomfield is effectively making.

However, simply because states must voluntarily sign the new WHO accords doesn’t mean they will not be ceding sovereignty once the accords are adopted. With all due respect to Dr. Tedros and Sir Ashley, this is a distinction without a difference. Every single “legally binding” requirement will mean a transfer of effective decision-making power on health issues to the WHO. That is a curtailment of state sovereignty and it is disingenuous to deny it.

Since the creation of the United Nations in 1945, states have been required to conduct themselves increasingly in conformity with international standards. And it is the UN system that sets most of the relevant international standards and benchmarks of state behaviour.

For example, for centuries countries had the absolute right to wage wars of aggression and defence as an acknowledged and accepted attribute of sovereignty. By adopting the United Nations Charter in 1945, they gave up the right to wage aggressive wars. I am very glad they did so. Just because the surrender of this aspect of sovereignty was voluntary, it doesn’t mean there was no surrender of sovereignty.

Similarly, by signing the Nuclear Non-proliferation Treaty (NPT), Australia and around 185 states surrendered their sovereign right to make or get the nuclear bomb. Again, I am very glad they did so.

Article 10 of the treaty does permit withdrawal after a three-month notice to other states parties and the UN Security Council:

Each Party shall in exercising its national sovereignty have the right to withdraw from the Treatyif it decides that extraordinary events…have jeopardisedthe supreme interests of its country.

Australia could still act as a sovereign state and pull out of the NPT but, absent exculpatory events, only at the reputational cost of acting illegally under international law.

North Korea first announced withdrawal from the NPT in 1993, suspended the withdrawal, withdrew in 2003, has conducted six nuclear tests since 2006, and acquired up to 50 bombs. Yet, the UN has refused to accept the withdrawal and it is still listed on the UN website as an NPT member, with the explanatory note that: “States parties to the Treaty continue to express divergent views regarding the status of the DPRK under the NPT.”

Like these two important examples, states will lose key parts of the right to exercise their sovereignty over national policy settings and decisions on health if the WHO accords are adopted. It is their sovereign right to reject the treaties now. They should exercise it before it is too late. The complications entangling the post-Brexit referendum in the UK demonstrate only too vividly how challenging it can be for a state to extricate itself from a supranational authority despite the sovereign right to do so.

The best way to allay these fears and concerns would be to return responsibility to where accountability lies: with the national government and parliament. States should learn to cooperate better in global pandemic management, not hand effective decision-making powers and authority to unelected and unaccountable international technocrats.

The Effort Should Be Put on Indefinite Hold

It is an iron law of politics that any power that can be abused, will be abused by someone, somewhere, some time in the future. For current examples of overreach by a technocrat, look no further than Australia’s eSafety Commissioner. The truly frightening thing about her example is the realisation of just how much her efforts have been deliberately embedded in a global campaign to “bureaucratise” and control the internet.

A softer conclusion is that powers once granted over citizens to authorities are far more difficult to claw back than not giving them the powers in the first place. Thus far from retreating, the Censorship-Industrial Complex is simultaneously being broadened to embrace additional sectors of governance and public policy and globalised.

report from Leeds University documented that pandemics are rare events. They are not becoming more frequent. For poor countries, their global disease burden is much lower than that of the big killer diseases like TB, malaria, and HIV/AIDS. For industrialised countries like Australia, the disease burden has been greatly reduced since the Spanish flu with improved surveillance, response mechanism, and other public health interventions.

There is no emergency justifying the rushed process. An immediate pause and a slow and deliberative process would lead to better policy development and deliver better national and global health policy outcomes.

“Pause for thought, argue for a wider delay, think it through properly. And don’t sign till it’s right.” David Frost, who led the UK Brexit negotiations.

Just so.

Author

  • Ramesh Thakur

    Ramesh Thakur, a Brownstone Institute Senior Scholar, is a former United Nations Assistant Secretary-General, and emeritus professor in the Crawford School of Public Policy, The Australian National University.

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Brownstone Institute

Musk Wins Latest Censorship Battle in Australia

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US billionaire Elon Musk, Australian eSafety Commissioner Julie Inman Grant

From the Brownstone Institute

BY Rebekah BarnettREBEKAH BARNETT

Can Australia’s eSafety Commissioner block content globally on demand? Not today, ruled the Australian Federal Court, in a win for Elon Musk’s social media platform X.

In a decision on Monday, Justice Geoffrey Kennett refused to extend a temporary injunction obtained by eSafety last month, which forced X to remove footage of the Wakeley church stabbing, an alleged religiously motivated terror attack.

Under the Online Safety Act (2021), the eSafety Commissioner, Julie Inman Grant, has the authority to order removal of such ‘class 1 material’ within Australia under threat of hefty fines.

eSafety argued that X had not gone far enough to block the content from Australians, as a geo-block can be circumvented by a VPN. X argued that eSafety was effectively seeking a global ban on content, straying outside of the Australian online harm regulator’s jurisdiction.

eSafety applied to the Federal Court to extend its temporary injunction against X, with a hearing taking place on Friday 10 May. The temporary injunction was due to expire at 5pm on Friday, but was extended to 5pm Monday—to allow time for Justice Kennett to deliver a decision on the matter.

In his decision, Justice Kennett held that X had taken “reasonable” steps to block the stabbing content as required under Australian law, and that eSafety’s request for a global ban was not reasonable.

Therefore, “The orders of the court will be that the application to extend…is refused,” said Justice Kennett, meaning that as of 5pm Monday, the injunction is no longer effective.

In a statement on the Federal Court decision, eSafety said that the matter will return to Court for a case management hearing on Wednesday, 15 May.

Source: X

“The application for this injunction should have never been brought,” said Dr Reuben Kirkham, Co-Director of the Free Speech Union of Australia (FSU) in a statement, questioning the validity of the Commissioner’s bid to enact a global content ban on X. “The eSafety Commissioner is overreaching and behaving more like an activist than a responsible public servant.”

Dr Kirkham, who was present for the hearing, told Dystopian Down Under that he counted 12 lawyers present (seven for X, five for eSafety), which, if eSafety is ordered to pay costs, will lump taxpayers with “a considerable amount of unnecessary legal costs.”

Digital civil liberties nonprofit the Electronic Frontier Foundation (EFF) echoes FSU Australia’s position, stating that, “no single country should be able to restrict speech across the entire internet,” and likening the Commissioner’s actions to “[using] a sledgehammer to crack a nut.”

An affidavit submitted by the EFF to the eSafety vs. X proceedings called for the Court to consider the international impact that a ruling in eSafety’s favour would have in setting a precedent for allowing one country to enforce content bans on citizens of other countries.

“If one court can impose speech-restrictive rules on the entire Internet—despite direct conflicts with laws [in] a foreign jurisdiction as well as international human rights principles—the norms of expectations of all internet users are at risk,” stated the EFF in an article summarizing the affidavit.

X’s Global Government Affairs posted about the hearing, stating, “We’re glad X is fighting back, and we hope the judge will recognize the eSafety regulator’s demand for what it is—a big step toward unchecked global censorship—and refuse to let Australia set another dangerous precedent.” At the time of publishing, no updated statement on the Judge’s decision had been issued.

Source: X

Dr Kirkham calls the Commissioner’s application to extend her injunction against X “part of a pattern where the eSafety Commissioner’s office seemingly engages in gamesmanship rather than respecting the rule of law or acting as a model litigant.”

Indeed, the ruling in X’s favour comes amidst mounting controversy over the eSafety Commissioner’s ongoing battle with X, which appears to be driven partly by Julie Inman Grant’s global censorship ambitions, and partly by personal feelings.

Inman Grant, who formerly directed Twitter’s Public Policy (Australia and Southeast Asia), has repeatedly criticized Elon Musk since his purchase of the Twitter platform in 2022.

Moreover, Musk’s advocacy for a broad interpretation of free speech on the internet conflicts with Inman Grant’s professed view of free speech as a right that needs to be “recalibrated” for online spaces.

YouTube video
For its part, X has failed to comply with routine reporting to the eSafety Commissioner’s satisfaction, leading eSafety to initiate civil penalty proceedings against X in December last year. If found non-compliant, X could be fined up to AUD $780,000 per day, backdated to March 2023, when the determination of non-compliance was made.

Perhaps the biggest controversy between X and eSafety centres on the highly charged and subective issue of gender ideology.

Inman Grant has enforced the removal of a string of posts on X questioning gender ideology, including one suggesting that men can’t breastfeed, and another about a trans-identified male who allegedly injured female players during a women’s football game in NSW.

In an internationally high-profile case, the Commissioner recently issued a removal notice over an acerbic gender-critical post by Canadian activist Billboard Chris, raising questions over whether the Government should be able to police opinions and censor statements of biological fact on the internet.

FSU Australia is currently involved in Administrative Appeal Tribunal proceedings on behalf of Billboard Chris (real name Chris Elston) against the eSafety Commissioner. Additionally, X has threatened to sue eSafety over the matter.

Source: X

Returning to the issue of the Wakeley stabbing footage, Inman Grant’s attempt to globally ban the content has been supported by the Australian Government, which leveraged the incident to call for more censorship, including the reintroduction of an unpopular misinformation bill.

Prime Minister Anthony Albanese has also responded to calls to address violence against women by proposing to further expand eSafety’s budget and remit, which could see deep fake pornography and “other misogynistic material” censored by the regulator.

No one will argue against explicit pornography being blocked from children’s view, but it is around the grey edges of definition creep on terms like ‘harm,’ ‘adult cyber abuse,’ and ‘misogynistic material’ where disagreements will undoubtedly kick off.

In a move of ‘no confidence’ against eSafety, FSU Australia has launched a petition to abolish the office of the eSafety Commissioner altogether, arguing that a combination of parental controls and platform incentives will suffice in keeping children safe on the internet.

A more moderate approach may be to curtail eSafety’s remit to its original function of dealing with child abuse content (as in 2015), and revenge porn (as in 2017), before the regulator’s purview and powers were significantly expanded with the introduction of the Online Safety Act in 2021.

However, in the media and political conversation, there is little appetite for a moderate approach, as conveyed in a viral guest appearance by media personality Tracey Holmes on a recent episode of the ABC’s failing show Q+A.

Calling out the double standard in the censorship conversation, Holmes told the studio audience,

“I don’t agree with any kind of censorship in a general sense. I don’t think Elon Musk is contributing to any social cohesion split inside this country. I think our mainstream media is doing enough of that. I think our politicians do enough of that…

“Of course there are fault lines everywhere, but there’s only one way you can stop those fault lines from getting bigger, and that is to have the ability to have the town square to hear different points of view…

“And I think unfortunately we’ve been fed ‘this side or that side’ for so long, people are giving up on mainstream media, that’s why they’re tuning out. That’s why they’re going to YouTube…we have let them down.”

Hopefully, some higher-ups in the corporate media tuned in to hear what Holmes had to say.

Read more about the judge’s decision

Republished from the author’s Substack

Author

  • Rebekah Barnett

    Rebekah Barnett is a Brownstone Institute fellow, independent journalist and advocate for Australians injured by the Covid vaccines. She holds a BA in Communications from the University of Western Australia, and writes for her Substack, Dystopian Down Under.

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