Elon Musk’s X wins ‘free speech’ fight against eSafety Commissioner

6 hours ago 2

Lawyers for social media platform X have declared a judgment that found in X’s favour against the eSafety Commissioner “a win for free speech in Australia”.

On Tuesday, the Administrative Review Tribunal struck out an order by Australia’s eSafety Commissioner Julie Inman-Grant, which demanded that Elon Musk’s X remove a post that insulted a transgender Australian man.

Elon Musk has recorded a victory in an Australian court, which could have implications for other social media platforms.

The order was made in Mach 2024 and relates to an X post about trans rights activist Teddy Cook, who is director of community health at NSW health organisation ACON.

Chris Elston, known on X as Billboard Chris, misgendered and insulted Cook, equated transgender identity with mental illness, and linked to an article suggesting Cook was “too smutty” for intergovernmental work.

At the time, X complied with an order from Inman-Grant to hide the post from Australian users, but later lodged an appeal against the removal notice.

In his ruling, the tribunal’s deputy president Damien O’Donovan said he was not satisfied that the post met “the statutory definition of cyber-abuse material targeted at an Australian adult”.

In Australia, if online content is serious enough and the service or platform does not help the person affected, the eSafety Commissioner can direct the platform to remove it.

The statutory definition is that the offensive content in question must target a specific Australian adult (over 18 years old) and be both intended to cause serious harm, and menacing, harassing or offensive in all the circumstances.

“The more focused question is whether I can be satisfied that the necessary intention to cause serious harm to the subject of the post has been established,” he wrote in his ruling.

“Based on the evidence before me, I am not satisfied that it has. Consequently, the decision of the eSafety Commissioner to issue a removal notice is set aside.”

X was represented in court by Justin Quill, partner at major law firm Thomson Geer.

“This is a win for free speech in Australia,” Quill said in a statement on Tuesday night.

“It seems clear this is another example of the eSafety Commissioner overreaching in her role and making politically motivated decisions to moderate what she considers Australians should and shouldn’t read and hear from the outside world.”

Inman-Grant’s office said in a statement: “eSafety welcomes the guidance provided by the Tribunal on the statutory test for adult cyber abuse. We will continue to take seriously the responsibility of remediating online harms and protecting Australians from serious online harms.”

The ruling

In his ruling, O’Donovan also said: “The post, although phrased offensively, is consistent with views Mr Elston has expressed elsewhere in circumstances where the expression of the view had no malicious intent.

“For example, his statement placed on billboards that he is prepared to wear in public ‘children are never born in the wrong body’ expresses the same idea about the immutability of biology that he expresses, albeit much more provocatively, in the post,” he wrote.

“When the evidence is considered as a whole I am not satisfied that an ordinary reasonable
person would conclude that by making the post Mr Elston intended to cause Mr Cook
serious harm.”

The ruling comes as the federal government seeks to introduce its social media ban for under-16s by December.

In June last year, the commissioner decided to discontinue action against X in the Administrative Appeals Tribunal over the platform’s refusal to take down a video showing the stabbing of a religious leader in Sydney.

eSafety has also confirmed X has recently filed a fresh case in the Federal Court to consider whether the platform should be exempt from eSafety’s obligations to tackle harmful content, “including child sexual exploitation and abuse material”.

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