“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.”
LGBTQ advocate Teddy Cook.Credit: Rhett Wyman
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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