eSafety Commissioner Defends Use of Informal Notices After Tribunal Finds Practice Unlawful

The office says the approach helps address online harm, after a case that cost more than $300,000 in legal fees.

An image of the X (formerly Twitter) phone app in front of a laptop featuring the front page to Australia's eSafety commissioner website, taken in Perth, Western Australia on Jan. 22, 2024. Wade Zhong/The Epoch Times

The eSafety Commissioner, Julie Inman-Grant, has defended the use of informal channels to flag online content, despite a tribunal finding the practice unlawful in a case that has cost the regulator more than $300,000 in legal fees.

The case centres on a 2024 post on the social media platoform X by Sydney mother Celine Baumgarten, who criticised a Victorian primary school’s “queer club” for students in Years 3 to 6 and identified the teacher involved.

The eSafety office determined the post did not meet the threshold for a formal removal notice under the Online Safety Act. Instead, it issued an informal complaint alert through an online form, which resulted in the post being geo-blocked in Australia.

Baumgarten challenged the decision in the Administrative Review Tribunal (ART), which found in her favour.

During proceedings, evidence was given that X treated the message as a formal takedown notice, in part due to its wording and reference to provisions of the Online Safety Act.

X unblocked the post two months after Baumgarten lodged her review application.

A History of Illegal Notices

The case marked the fourth time the use of informal communication by the eSafety Commissioner has been found to be unlawful by a tribunal or court.

Inman-Grant has since appealed the decision, with the eSafety office spending $131,572 on external legal fees, $188,110 on counsel, and $9,359 on filing and related costs, according to documents obtained under freedom of information laws.

The Free Speech Union (FSU)’s director, Reuben Kirkham, said the figures would concern many Australians during a cost-of-living crisis.

“Most Australians will be appalled at how much was wasted,” Kirkham told The Epoch Times.

“There is a need to protect the public from agencies misusing public resources to protect the blushes of people who mismanage government agencies.”

Opposition communications and digital safety spokesperson Sarah Henderson also raised concerns about the use of informal notices.

She said the adult cyber abuse provisions in the Online Safety Act was designed to target serious, targeted harm, not lawful disagreement.

“The statutory test requires that material needs to be intended to cause serious harm—harm that is serious, not trivial, subjective, or merely offensive,” she told Parliament.

“What the eSafety Commissioner has been doing in approximately hundreds of cases every year ... is issuing notices that don’t comply with the law.”

Henderson said recent court findings made clear that legal authority could not be assumed through the wording of a notice alone.

Henderson has called on the government to investigate the misuse of the eSafety Commissioner’s powers.

“While the eSafety Commissioner has updated complaint alerts to make clear a social media platform is not compelled to take any action, I am concerned there has been widespread misuse of the regulator’s powers, which have improperly stifled free speech, undermining the integrity of Australia’s online safety laws,” she said.

Investigation Called For

In response, the eSafety Commissioner defended her actions, saying informal notifications were a key tool for regulators and law enforcement.

The office said such notices reduce regulatory burden on companies and can enable faster responses to harmful online content.

Inman-Grant also justified the decision to appeal the matter to the Federal Court, saying it sought clarification on whether the complaint notification made to X constituted a reviewable decision under administrative law.

“eSafety has a high success rate in remediating serious online harms,” she added.

Baumgarten said the case demonstrated broader concerns about eSafety office’s approach.

“Their internal process of pressuring social media companies to remove content they deem as harmful has been rendered useless. Using their access to a bottomless pit of taxpayer funds to pursue pointless litigation, eSafety have once again put ideology over safety,” she told The Epoch Times.

“This all started over a video about children being exposed to queer theory at primary school, and I would encourage parents to continue voicing their concerns wherever possible.”