6 A report was provided to the Commissioner on 29 March 2023. The Commissioner contends that the report did not provide all the information that was required, claiming that various responses were absent, incomplete, or inaccurate.
7 Subsequently, and after requests for further information and exchanges of correspondence, a response to additional matters raised by the Commissioner was given on 5 May 2023. This response was given in answer to "some clarifying questions" raised by the Commissioner under cover of an email dated 6 April 2023.
8 On 3 October 2023, an infringement officer issued an infringement notice to X Corp, purportedly under s 163(1) of the Online Safety Act. The infringement notice specified several claimed contraventions of s 57 of the Act and itemised penalties of $16,500 for each claimed contravention, being a penalty for each day from 29 March to 5 May 2023. The total sum of the penalties claimed was $610,500.
9 Also on 3 October 2023, the Commissioner gave X Corp a service provider notification under s 62(1) of the Online Safety Act. The notification stated that the Commissioner was satisfied that X Corp had contravened ss 56(2) and 57 of the Act by failing to comply with the reporting notice. The Commissioner is authorised to publish the notification on the Commissioner's website and to give a copy to the service provider. The notification carries no other consequences under the Act.
The issues in overview
10 There are two main issues in this proceeding –
- (1) Was X Corp required to comply with the reporting notice that was issued to Twitter Inc? Both parties adduced evidence of foreign law, namely the corporations legislation of Nevada and Delaware, which was said to be relevant to the first issue.
- (2) If X Corp was not required to comply with the reporting notice, then was the infringement notice issued to X Corp invalid on this ground? Relevant to the second main issue is whether the infringement officer had reasonable grounds to believe that X Corp had contravened s 57 of the Online Safety Act.
