X Corp. and eSafety Commissioner - [2025] ARTA 852

X Corp. and eSafety Commissioner [2025] ARTA 852 (1 July 2025)
Applicant:X Corp.
Respondent: eSafety Commissioner

Tribunal Number:                2024/2582
Applicant:Christopher Elston
Respondent:  eSafety Commissioner
Tribunal Number:                2024/2583

Tribunal:Deputy President O'Donovan
Place:Melbourne
Date:1 July 2025

Decision:The Tribunal sets aside the decision under review and in substitution decides to refuse to give a removal notice.

Statement made on 01 July 2025 at 4:52pm
Catchwords
Online Safety – cyber-abuse material targeted at an Australian adult – post on X that misgendered a transgender man – suggested transgender persons belong in psychiatric ward – evidence that can be considered by the eSafety Commissioner – whether ordinary reasonable person test narrows material available to decision maker – whether likely is a real chance or probable – whether post intended to have effect of causing serious harm – ordinary reasonable person would not conclude that likely post intended to cause serious harm to particular individual – absence of evidence of intention that post would be drawn to relevant individuals attention
Legislation
Online Safety Act 2021 (Cth) ss 5 7, 36, 37, 46, 88, 220A
Cases
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
ASIC v Cassimatis [No 8] (2016) 336 ALR 209
Australian Competition and Consumer Commission v Pacific National Pty Ltd and Others [2020] FCAFC 77
Bazzi v Dutton (2022) 289 FCR 1
Boughey v The Queen (1986) 161 CLR 10
Faruqi v Hanson [2024] FCA 1264
Harvey v Minister for Primary Industry and Resources (2024) 278 CLR 116
Lacey v Attorney-General of Queensland [2011] HCA 10
News Ltd v South Sydney District Football Club Ltd (2003) 215 CLR 563
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees Union (1979) 42 FLR 331
Vallance v R (1961) 108 CLR 56
Zheng v Cai [2009] HCA 52
Secondary Materials
Explanatory Memorandum, Online Safety Bill 2021 (Cth)
Statement of Reasons
INTRODUCTION

The applications before this tribunal have their origin in a social media post insulting Teddy Cook, a transgender man. The post, which among other things refers to Teddy Cook as a woman, has been blocked in Australia as a result of action by the online safety regulator. The person who posted the material and the platform on which it was posted have both challenged the decision of the regulator to issue a removal notice. The broad question to be answered is whether the post meets the statutory definition of cyber-abuse material targeted at an Australian adult. The more focussed question is whether I can be satisfied that the necessary intention to cause serious harm to the subject of the post has been established. 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. My reasons for that conclusion follow.
The Online Safety Act 2021 (Cth) (‘OLS Act’) makes provision for complaints to be made to the eSafety Commissioner (‘Commissioner’) about material that is posted to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] ARTA 852
Decision Date: 1 July 2025

CaseChat Overview and Summary

In the matter of X Corp. and eSafety Commissioner, the dispute centred on a post made on the social media platform X (formerly known as Twitter) by Christopher Elston that was alleged to contain cyber-abuse material targeted at an Australian adult, Teddy Cook. Teddy Cook, a transgender man, complained about the post to the eSafety Commissioner, who subsequently issued a removal notice to X Corp., the platform's owner, resulting in the post being geo-blocked for Australian internet users. Both X Corp. and Mr Elston filed applications for review of the Commissioner’s decision with the Administrative Appeals Tribunal (AAT), arguing that the post did not meet the statutory thresholds for the issuance of a removal notice.

The primary legal issues the AAT had to decide were whether the Commissioner had the correct evidential basis to make the decision and whether the post met the statutory criteria for cyber-abuse material. Specifically, the AAT needed to determine if the post was likely to cause serious harm to Teddy Cook and if it was intended to have that effect. The AAT also considered whether the ‘ordinary reasonable person’ test appropriately limited the scope of evidence available to the Commissioner in making the decision. Furthermore, the AAT had to assess whether the term ‘likely’ in the context of the potential to cause serious harm should be interpreted as a real chance or as a probable event.

The AAT found that the Commissioner had not correctly applied the legal test in determining whether the post met the statutory criteria for cyber-abuse material. The AAT held that the Commissioner's interpretation of the ordinary reasonable person test was too narrow, limiting the evidence available and thereby misapplying the statutory test. The AAT concluded that an ordinary reasonable person would not consider the post likely to cause serious harm to Teddy Cook, as there was no evidence that the post was intended to draw Teddy Cook’s attention or that it was likely to be seen by him. The AAT also noted that the post was part of a broader public debate and was not specifically targeted at Teddy Cook.

The AAT set aside the Commissioner’s decision to issue a removal notice and substituted a decision to refuse to issue such a notice. The post did not meet the statutory criteria for cyber-abuse material, as it was not likely to cause serious harm to Teddy Cook, nor was it intended to do so.

Orders

Orders of the court

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Background

Background to the litigation

The Online Safety Act 2021 (Cth) (‘OLS Act’) makes provision for complaints to be made to the eSafety Commissioner (‘Commissioner’) about material that is posted to a social media service.[1] The Commissioner can investigate any complaint made.[2] If the Commissioner is satisfied that the material is ‘cyber-abuse material targeted at an Australian adult’, the Commissioner may give a removal notice to the social media service on which the material is posted.[3] If the social media service complies with the notice this results in the geo-blocking of the material so that it cannot be accessed by Australian internet users (or at least internet users who can be identified as accessing the internet from Australia). Decisions to give removal notices are subject to review in the Administrative Review Tribunal (‘Tribunal’). Review by this Tribunal is de novo merits review, which means that I do not consider whether there are defects in the Commissioner’s decision, but decide for myself on the evidence before me, whether the power to issue a removal notice can and should be exercised. [1] Online Safety Act 2021 (Cth) s 36.[2] Ibid, s 37.[3] subject to other requirements being satisfied that are identified later.BACKGROUND There are two applications for review before the Tribunal. Both concern the same removal notice given by a delegate of the Commissioner to X Corp. The Commissioner’s delegate gave the notice after finding that a post relating to Australian adult Teddy Cook was cyber-abuse. Teddy Cook made the complaint that led to the removal notice being given. Mr Cook is a transgender person who identifies as male but was a biological female at birth. The first application for review to have the Commissioner’s decision reviewed was made by X Corp. The second was made by Christopher Elston. X Corp. owns the social media service previously known as Twitter, but which is now known as ‘X’. X Corp. is the applicant in application 2024/2582. Mr Elston is the activist who made the post the subject of complaint. He is the applicant in application 2024/2583. Both applicants seek review on the basis that the material the subject of the complaint does not meet the statutory thresholds for the giving of a removal notice. The Commissioner contends that it does. An image of the post (with one photo different from the original) is annexed to these reasons and marked Attachment A. The post was written by Mr Elston. It was uploaded to X along with a link to an article published in the online newspaper the Daily Mail. The post was accompanied by three photos - one of the World Health Organisation (WHO) logo, one of a man having sex with a dog and one of Teddy Cook. These photos were pulled from the Daily Mail article onto the X post by the platform’s algorithm. The photos did not appear as a consequence of any specific decision by Mr Elston to select the images. In the photo of Teddy Cook included in the post, his appearance is male. In the article Teddy Cook is referred to by male pronouns throughout. The article describes him as ‘a professional queer, man of trans experience’ and a ‘female to male trans Australian activist’.

Evidence

Evidence Before The Court

After the post was removed, Mr Elston posted a further 31 times in relation to Mr Cook. Posts concerning Mr Cook by Mr Elston had a total of 18,206 reposts, 84,415 likes, 2774 replies, and 6,661,954 views.EXPERT EVIDENCE A large volume of what was described as expert evidence was filed in the proceedings and the oral evidence of these experts occupied a significant amount of hearing time. It fell into five broad categories:(a)Evidence about the sociological functioning of the internet generally and evidence about the functioning of the X platform in particular;(b)Medical evidence about the effect on a trans person of misgendering;(c)Non-medical evidence about digital harms caused by posts;(d)Medical evidence about the threshold for ‘serious distress’ and other aspects of the definition of ‘serious harm to a person’s mental health’;(e)Evidence about what could be broadly described as transgender issues and the public debate in relation to them. Because the Commissioner took the approach that the range of material that could be considered when determining whether the Intention Element was satisfied was limited, there was less focus in submissions on how the available evidence should be deployed when considering whether the necessary components of the Intention Element were satisfied. Evidence about the X Platform and the Internet In my assessment, the evidence about the functioning of the internet and the functionality of the X platform provided some useful factual information that shed light on the question of intention. Associate Professor Timothy Graham explained aspects of it in his report which are relevant and useful. Some of what follows will be self-evident to regular users of the platform, but it is useful to record as the detail about how the platform works gives some insight into what posters may intend. The most important function available to X account holders is the ability to post. When Twitter first started up posts initially were limited to 140 characters. Then the limit was moved to 280 characters. X Premium subscribers, of which Mr Elston is one, can upload posts of up to 10,000 characters. People who are interested in posts generated by a person can become a follower. When a person is a follower and the person they are following posts, they are either alerted to the post, or, the post is included in the followers feed. Mr Elston posts content. It is available to his followers. His followers can interact with the post by sharing the post with their followers. This is done by re-posting. Users can also ‘like’ a post. At the time Mr Elston posted the material, if a person ‘liked’ a post, the fact that they had done so became publicly known.[42] [42] This function has since been altered by X. X uses likes and reposts to determine which content is attracting interest. Significant attention can result in X identifying the post as a trending topic which can attract further attention. When a person posts, other users can post comments on the post. This involves placing comments underneath the post which become visible to anyone accessing the post who decides to review the comments.

Decision

Reasons for decision

Consequently the Intention Element is not made out and the statutory preconditions for issuing a removal notice are not satisfied.DECISION The decision to issue a removal notice is set aside. A decision to refuse to issue a removal notice is substituted.

Ratio Decidendi

Legal Principle Established

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