By Rachael Wong
Yesterday, the Administrative Review Tribunal handed down a major decision striking a blow against Australia’s increasingly censorious online safety regime.
In a victory for free speech, the Tribunal found that the eSafety Commissioner should not have ordered that a post by Canadian children's advocate Chris Elston be taken down and geo blocked on the social media platform X (formerly Twitter). Elston is known widely as ‘Billboard Chris’ for his work advocating to protect children from harmful medical transitioning practices, through conversations sparked by his billboards around the world.
The post in question had ‘misgendered’ (aka used biologically correct pronouns) prominent Australian transgender activist Teddy Cook – a woman who identifies as a man – and critiqued the appointment of Cook to a World Health Organisation panel on transgender health. Referring to an article in the Daily Mail on 27 February 2024 titled ‘Kinky secrets of UN trans expert REVEALED: Australian activist plugs bondage, bestiality, nudism, drugs, and tax-funded sex-change ops – so why is he giving health advice for the world body?’, Elston tweeted:
Elston is the first to admit that this was not his "nicest" or most "polite" tweet, but the message he wanted to communicate remains the same: "children struggling with gender dysphoria deserve better than ‘guidelines’ written by activists who only want to push them in one direction.”
The post led Cook to complain to the eSafety Commissioner, who then classified it as "cyber-abuse" under the Online Safety Act 2021 and issued a removal notice, forcing X to block access to the post for all Australian users. Both X and Elston challenged the decision, arguing that it was an overreach and a violation of the right to free speech.
In a 60-page decision, Deputy President Damien O’Donovan rejected the Commissioner’s censorship order, concluding that the post did not meet the legal threshold of intending to cause “serious harm” to an individual, as required by the definition of "cyber-abuse" under the Act. This is because, while he concluded that “an ordinary reasonable person in Mr Cook’s position would regard the material posted as offensive” he was “not satisfied that an ordinary reasonable person would conclude that it was likely that Mr Elston intended the post to have an effect of causing serious harm to Mr Cook”. In other words, the intention element of the definition of "cyber-abuse" was not met.
In finding that Elston had not intended to cause Cook serious harm, the Tribunal considered factors including that he did not know Cook personally and so did not have a personal motivation to harm Cook, that the post was part of his broader political commentary and advocacy, that he did not take steps to draw the post to Cook's attention nor was there any evidence he intended the post to come to Cook’s attention, and that there was no evidence that he sought to trigger a ‘pile-on’. Indeed, the Tribunal noted that the personal details and specific focus regarding Cook was introduced into the public domain by the Daily Mail, not Elston, that Elston made a single post and did not seek out and re-post other posts hostile to Cook, and Elston did not use Cook’s name in the post itself or @mention Cook.
“Mr Elston provides an explanation as to why he made the post that is consistent with him doing so for reasons that do not include causing Mr Cook harm. He misgendered Mr Cook because it is his universal practice to refer to people who identify as trans by pronouns and descriptors that correspond to their biological sex at birth. He does this to reflect his belief that doing otherwise involves an untrue statement and because doing otherwise has implications for the rights and safety of women and children.
“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.” –Deputy President O’Donovan
Ultimately, the ruling affirms that just because a post is offensive, does not mean it should be taken down, and that using a person's biologically correct pronouns or calling a woman a woman or a man a man does not constitute "cyber-abuse" in itself. We are free to genuinely debate and discuss important issues and ideas online, as long as we are not seeking to attack and harm individuals.
The decision is a much-needed check on the powers of the eSafety Commissioner, who has become increasingly bold in using censorship powers to police political speech online, especially regarding sex and gender, and the protection of women and children in the face of gender ideology.
However, this growing government censorship is not limited to the eSafety Commissioner. Around Australia, subjective claims of harm are being weaponised to silence legitimate viewpoints on biological reality, child safeguarding and sex-based rights. Take for example the case of Breastfeeding expert Jasmine Sussex who was not only censored online, but is now facing a vilification claim for raising concerns about men who identify as women attempting to ‘breastfeed’ babies with drug/hormone-induced ‘milk’, or the case of Binary spokeswoman Kirralie Smith who has faced multiple legal actions for saying that men don’t belong in women’s sports.
Australians owe a debt of gratitude to Billboard Chris and X for standing up to government censorship, as well as to organisations like Alliance Defending Freedom and the Human Rights Law Alliance who coordinated his legal challenge, and the Free Speech Union of Australia who initially supported him in challenging the removal notice. The decision not only vindicates Billboard Chris and X – it is a huge win for free speech in Australia, particularly when it comes to speaking about biological reality and the influence of activists in our institutions.
The decision comes just a week after Elston won another victory against Brisbane City Council who withdrew its infringement notice after having police remove him from the public square when he was in Australia for the eSafety hearing in March. It also comes just days after eSafety Commissioner Julie Inman Grant was named in a US House Judiciary Committee report for colluding to censor free speech online.
Rachael Wong is the CEO of Women's Forum Australia
Women’s Forum Australia is an independent think tank that undertakes research, education and public policy advocacy on issues affecting women and girls, with a particular focus on addressing behaviours and practices that are harmful and abusive to them. We are a non-partisan, non-religious, tax-deductible charity. We do not receive any government funding and rely solely on donations to make an impact. Support our work today.
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