In a landmark legal victory, Elon Musk’s social media platform, X, and Canadian activist Chris Elston, also known as Billboard Chris, have successfully challenged a takedown notice issued by Australia’s eSafety Commissioner, Julie Inman Grant.
The ruling was handed down by the Administrative Review Tribunal (ART) on Tuesday evening, declaring that the notice, which had ordered the removal of a controversial post, was unjustified.
The case stemmed from a February 2024 post by Elston, in which he criticized the World Health Organization (WHO) for appointing transgender activist Teddy Cook, a biological female, to a panel tasked with drafting policies on healthcare for transgender individuals. Elston’s post controversially misgendered Cook and included statements that were deemed offensive, including calling Cook a “woman” and claiming that people “who belong in psychiatric wards” were writing guidelines for those who should also be in psychiatric wards.
The post, which quickly gained traction on X, led the eSafety Commissioner to issue a takedown notice in March 2024. The notice threatened a fine of up to $782,500 if the post remained online. X complied with the notice, but both the platform and Elston filed a legal challenge against it, arguing that the removal order infringed on their right to free speech.
On Tuesday, ART Deputy President O’Donovan ruled in favor of Elston and X, overturning the removal order. O’Donovan noted that while the post was indeed “offensively phrased,” it reflected views that Elston had expressed elsewhere without any malicious intent. Specifically, O’Donovan pointed out that Elston’s public statement, which he had displayed on billboards saying, “children are never born in the wrong body,” shared the same controversial message about the immutability of biological sex.
The ruling emphasised that there was no evidence to suggest that Elston intended to cause serious harm to Cook. Furthermore, it concluded that there was no proof that Elston had intended for Cook to see or read the post.
The case focused on the Online Safety Act, which was designed to protect Australians from cyber abuse. The law defines “adult cyber abuse” as material that targets a specific adult, intending to cause harm, and is also menacing, harassing, or offensive in all circumstances. The eSafety Commissioner has the authority to issue removal orders if both of these criteria are met. However, the tribunal found that the post did not meet these conditions.
The ruling has been celebrated by free speech advocates. Moira Deeming, a Victorian Liberal parliamentarian, took to X to express her support, writing, “Wow! Thank you, Billboard Chris and Elon Musk.” Paul Coleman, executive director of Alliance Defending Freedom International, called the ruling a “decisive win” for free speech, arguing that the Australian government had overstepped by censoring the peaceful expression of a Canadian citizen on an American-owned platform.
The eSafety Commission has yet to comment on the ruling, but the case highlights growing concerns about the limits of free speech in the digital age, especially regarding controversial topics like transgender issues.
