A landmark ruling has declared that Australia’s E-Safety Commissioner Julie Inman Grant erred when she ordered a post from a anti-transgender activist be taken down.
When Teddy Cook, an Australian transgender man with extensive experience in the health and community sectors was appointed to World Health Organisation (WHO) panel on health care delivery Canadian activist Chris Elston took to social media platform X to slam the decision.
Elston, who is known as Billboard Chris, travels the world campaigning against youth who experience gender dysphoria being treated with the affirmation model of care, or being allowed to access puberty blocker medication. The Canadian activist often makes public appearances with placards strapped to his body.
In his post Elston shared photos of Cook and described the health worker as a “woman” and noted Cook’s appointment to the WHO board. The post read “This woman (yes, she’s female) is part of a panel of 20 ‘experts’ hired by the WHO to draft their policy on caring for ‘trans people’. People who belong in psychiatric wards are writing the guidelines for people who belong in psychiatric wards.”
The E-Safety Commissioner labelled the remarks “degrading” and issued a takedown notice to X on March 22nd 2024, threatening the company with a $782,500 fine if they failed to remove the post. The social media company complied and blocked the post, but Elston and X filed a legal challenge with the Administrative Review Tribunal (ART).
This week Damien O’Donovan, the Deputy President of the ART, ruled in favour of Elston and X and ordered that the takedown order be rescinded.
O’Donovan said that Elston did not have a malicious intent when he made the post, nor was he under the belief that it would be seen by Cook.
“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,” Mr O’Donovan said.
“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.
“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.” O’Donovan said.
In the absence of any evidence that Mr Elston intended that Mr Cook would receive and read the post, and in light of the broader explanation as to why Mr Elston made the post, I am satisfied that an ordinary reasonable person would not conclude that it is likely that the post was intended to have an effect of causing serious harm to Mr Cook,” he said in the ruling.
A spokesperson for eSafety told OUTinPerth that they would remain committed to protecting Australians from serious online harms.
“eSafety notes the Administrative Review Tribunal’s decision to set aside eSafety’s decision to give a removal notice to X Corp relating to a post on X by Mr Elston.
“This is the first case before the Tribunal seeking review of a decision where eSafety assessed the material met the criteria for adult cyber abuse.
“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 spokesperson said.
The Human Rights Law Alliance, who worked with Elston on his legal case, has welcomed the ruling describing it as an important decision for the protection of free speech in Australia against increasing government censorship.
“The Tribunal reaffirmed that the Online Safety Act is not intended ‘to control or regulate debate on controversial issues, nor to manage or set minimum standards of courtesy.’ The decision is a significant reprimand to the eSafety Commissioner for use of social media censorship powers in the Online Safety Act to silence political speech.” the group said.
Lawyer John Steenhof said the case would set an important precedent about public debate.
“Chris’s case is an important win for freedom of speech in Australia.
“It will seriously curtail the overreach of the government into discussion in the public square about important issues such as the protection of children from medical harm and the upholding of women’s sex based rights.
“It is part of a global fight against government censorship.” Steenhof said.
Do you need some support?
If you are struggling with anxiety or depression, support and counselling are available from:
QLife: 1800 184 527 / qlife.org.au (Webchat 3pm – midnight)
QLife are a counselling and referral service for LGBTQIA+ people.
DISCHARGED: info@discharged.asn.au / discharged.asn.au
Discharged is a trans-led support service with peer support groups for trans and gender diverse folks.
Lifeline: 13 11 14 / lifeline.org.au
Beyondblue: 1300 22 4636 / www.beyondblue.org.au
