@CelinevMachine_
V
eSafety Commissioner
What happened?
In early June, the eSafety Commissioner had one of Celine's tweets geoblocked in Australia. The tweet was about the existence of a “queer club” in a primary school: Celine was questioning the appropriateness of such a club for Primary School aged children. The tweet was very mild and not the sort of thing you would normally expect to be censored.
Celine contacted FSU Australia and we filed an appeal against eSafety's notice to take down the tweet. eSafety claim they only issued an “informal notice” to take down the tweet, and that such notices can't be legally challenged. This is a tactic they have been using in 99% of their cases to try and avoid accountability for their censorious behaviour.
Stay updated on Celine's case
We will keep you updated about Celine's case and eSafety.
Update 20 December 2024: We are waiting for the eSafety Commissioner to file further submissions and for a hearing transcript. In the meantime, you can read our submissions here.
Update 29 November 2024: The President will chair the Guidance and Appeals Panel, to determine if the eSafety Commissioner's informal notice scheme is lawful.
Update 16 August 2024: A full transcript of Wednesday's directions hearing is now available!
Update 14 August 2024: The first hearing about the summons we applied for against the Commissioner took place today. The Tribunal reserved their decision and will update us in due course.
We have filed the claim before the Administrative Appeals Tribunal. The eSafety Commissioner has claimed that the Tribunal has no jurisdiction, because she did not intend to issue a notice. She says Celine should instead complain to 'X Corp' for following her notice. She has admitted that there was no legitimate legal basis to issue a notice.
This means the AAT is expected to decide whether the Commissioner can avoid an appeal by claiming her notices are 'informal'. This is fundamentally important, as if the eSafety Commissioner is correct, she can practically avoid any appeals of her decisions. We understand that 99% of the eSafety Commissioner's takedown communications are allegedly informal.
The Free Speech Union has obtained legal assistance at a considerable discount. However, we still have some significant legal costs in respect of this case. We would be grateful for donations to ensure we can put up a strong fight against eKaren.
NB: All donations made will be used in the first instance to fund legal assistance for this case in the Administrative Appeals Tribunal (Baumgarten v eSafety Commissioner). If there are excess donations, they will be used by the Free Speech Union of Australia Pty Ltd for further work on challenging the eSafety Commissioner. This fundraiser is being conducted by Giving Justice Pty Ltd in support of these two causes.
At the minute, the question is whether the Tribunal has jurisdiction to hear the matter. The eSafety Commissioner says that the notice, despite being sent to X, is not appealable and should instead be subject to Judicial Review. The case can be seen in more detail within our submissions. You can also see the Commissioner's submissions on the case. Our summary of some of the core issues are below:
Issue 1: What was sent to X? The eSafety Commissioner claims never to have issued a notice. One of the most remarkable features of this case is the underlying factual dispute. The eSafety Commissioner claims to have sent something different to what X Corp say they received. They also have records of a draft, but apparently never kept the notice. X has no record of receiving the draft. The record they have also uses the name of an eSafety staff member who was not involved in the matter.
Issue 2: Is whatever was sent to X a notice under Section 88 of the Online Safety Act 2021? This depends on the facts that the Tribunal finds about what eSafety were sent. The Commissioner claims it was a mere suggestion, designed to encourage them to take down the post. This 'encouragement' worked on Meta, who have kept the post off the internet. On the other hand, it was submitted via X's legal request form, which X says can only be used for formal notices.
Issue 3: Can it be challenged anyway? There is a longstanding body of case law (starting from a case known as Brian Lawlor) that means even a purported decision can be challenged to the Tribunal, even if it was made illegally. In other words, an informal notice might be appealable anyway, given there is no express power for the Commissioner to issue one under the Online Safety Act 2021.
The above list is perhaps deceptively simple. The Tribunal will have to work out what the Online Safety Act 2021 requires when issuing a notice under the Adult Cyber Abuse Scheme for the first time. It will then have to work out what its powers are based on what happened - in other words, it will have to work out how it will operate under the new legislation. What the Tribunal decides could also have major implications for the tens of thousands of cases that are brought to the Administrative Review Tribunal each year (e.g. social security and migration cases), as well as governmental decision making more broadly.
This would restore some accountability. If eKaren chooses to send a communication to a social media company encouraging them to take down your post, then she has to let you know and you can appeal it.
It would also underscore that the eSafety Commissioner was wrong to send the notice. She admits she had no legal basis under the Online Safety Act 2021 (Cth), but claims this means the decision cannot be challenged. One would have thought the purpose of the Tribunal was correct illegal decisions.
It is hard to be sure. We contend that the Commissioner keeps delaying the proceedings by taking proceedural points and failing to disclose all relevant documents. The main hearing has already been delayed on two occasions already.
The tweet was geoblocked. So if you use a VPN, or you do not live in Australia, then you can see it. Other people have also copied and redistributed the post, but there has been no attempts to target those reposts of the material.
They reflect the same conduct of the eSafety Commissioner in exceeding her jurisdiction and misunderstanding her powers, albeit they take a different form. They also both illustrate the risks of setting up an eSafety Commissioner and giving one person the purported power to police the internet.