The Tribunal heard that a social media post was geo-blocked in Australia, but the eSafety Commissioner tried to argue the notice was not a formal order.
When Celine Baumgarten published a video post on X detailing the existence of a “queer club” at an Australian primary school, she had little idea that it would lead to a rare legal defeat for the country’s eSafety Commissioner, Julie Inman-Grant.
The bisexual activist is a member of several groups, including Gays Against Groomers and Active Watchful Waiting (AWW), which describes itself as “an organisation dedicated to safeguarding the wellbeing of children in relation to gender identity policies.”
So when her post was geo-blocked (made so that Australians could not see it) on the orders of Inman-Grant, Baumgarten went to the Australian Free Speech Union, who took her case to the Administrative Review Tribunal.
Not only has her case prevailed, it has led to the Tribunal’s President, Justice Emilios Kyrou, criticising the Commissioner’s office.
Rather than defend her office’s actions, Inman-Grant argued that the Tribunal had no jurisdiction to review them because she had not issued a formal removal notice.
Instead, she sent X a “written communication,” which she described as a “complaint alert.”
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Apparently, eSafety sends “a few hundred” such alerts to service providers every year regarding adult cyber-abuse material, whereas just three or four removal notices were issued in the past 12 months.
Did Not Meet the Standard For a Removal Notice
eSafety admitted they handled it that way because Baumgarten’s post didn’t meet all the statutory preconditions for issuing a takedown order.
While they felt the post met the “menacing, harassing or offensive material” requirement, it did not satisfy the “intention to cause serious harm” requirement.
X, however, interpreted that as a legal requirement to remove the post and withheld it within Australia.
The content was also reported to Instagram, which took no action.
About two months later, X emailed Baumgarten advising that access to the post “was withheld in Australia in error, at the request of the eSafety Commissioner” and that it “was no longer withholding access to [it].”
The post remains available on X.
Inman-Grant said the intent of sending X a request through its dedicated law enforcement portal was merely to alert X that its terms of service had been breached and that it was “speculative” to even link the alert to the subsequent removal.
eSafety’s Argument ‘Not Plausible’: Judge
Baumgarten’s legal team and the Commissioner’s representatives differed over exactly what was said to X via its online portal, which the Commissioner’s office did not record.
However, the Tribunal was able to make its conclusions based on documents provided by eSafety, which showed that it had cited the Online Safety Act and used other terms which made it appear as though it were an official takedown request.
To claim otherwise, as Inman-Grant had, was “not objectively plausible,” Justice Kyrou wrote in the judgement on Feb. 5.
X made it clear that the portal used by eSafety was “for use by government authorities to submit valid legal requests for the removal from X of potentially illegal content, not for raising concerns about compliance with X’s own terms of service,” he said.
Also, X’s email to Baumgarten saying it had withheld the post “clearly indicates that X treated the communication made by the Commissioner as constituting a mandatory legal requirement for the removal of the post.”
Citing extensive legal precedent, Kyrou found that he could review the decision regardless of Inman-Grant’s intent and whether or not she had “the power to make a reviewable decision.”
“If the Commissioner, as the regulator responsible for online safety in Australia, makes a request to a social media service provider to remove a post and the provider responds by removing the post, that request could constitute a removal notice for jurisdictional purposes,” he said.
His decision was supported by the other Tribunal members who heard the case, Deputy President Damian O’Donovan and Senior Member Nicholas Manetta.
This decision is a major win for Baumgarten, meaning the Tribunal will now move to reviewing the eSafety Commissioner’s communications with X as though they were a formal removal notice, even though she contends she did not intend it to be read as such.
It also opens the way for people affected by other “complaint alerts” sent by eSafety to online platforms to seek judicial review of the Commissioner’s actions if the alert results in their material being geo-blocked or taken down completely.
