Elon Musk has won a landmark case against the eSafety Commissioner after it tried to censor an ‘offensive post’ a Canadian man made about an Australian UN trans expert.
Chris Elston, a children’s safety campaigner who goes by the name of ‘Billboard Chris’ on X and lives in Canada, was sent an Orwellian ‘removal notice’ from the Australian Government’s eSafety Commissioner in March 2024.
Mr Elston’s alleged offence had been to share a Daily Mail story about Teddy Cook, a female-to-male trans Australian activist who landed a job on a World Health Organisation (WHO) expert panel drafting care guidelines for trans and non-binary people.
Julie Inman Grant, the eSafety Commissioner, deemed the post to be ‘degrading’ cyber abuse and ordered X to remove it or face an almost $800,000 fine, prompting both Mr Elston and X to sue the Australian government.
On Tuesday night the Administrative Appeals Tribunal (ART) ruled that Mr Elston’s post did not meet the definition of cyber abuse and the eSafety Commissioner should
‘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 intentnot have ordered its removal,’ ART deputy president Damien O’Donovan ruled.
He added: ‘When the evidence is considered as a whole I am not satisfied that an ordinary reasonable person would conclude that by making the post Mr Elston intended to cause Mr Cook serious harm.’
The win was hailed as a victory for free speech by Paul Coleman, executive director of ADF International, who supported Mr Elston’s legal challenge alongside the Human Rights Law Alliance in Australia.
Elon Musk has won a case against the eSafety Commissioner after it tried to censor an ‘offensive post’ a Canadian man made about an Australian UN trans expert (pictured: eSafety Commissioner Julie Inman Grant)
Chris Elston (pictured, left), a children’s safety campaigner who goes by the name of ‘Billboard Chris’ on X and lives in Canada , was sent an Orwellian ‘removal notice’ from the Australian Government’s eSafety Commissioner in March 2024. He has now won his case, with his legal win being hailed by ADF International’s Lois McLatchie Miller (right) as a victory for free speech
‘This is a decisive win for free speech and sets an important precedent in the growing global debate over online censorship,’ Mr Coleman said.
‘In this case, the Australian government alarmingly censored the peaceful expression of a Canadian citizen on an American-owned platform, evidence of the expansive reach of censorial forces, even beyond national borders.
‘Today, free speech has prevailed.’
Mr Elston told Daily Mail Australia the ruling ‘provides a safe road map for free speech in Australia – and around the world’.
‘My intent was not to harm Teddy Cook but to encourage serious debate about these issues,’ he added.
Mr Elston said he believed that ‘calling a man a woman and vice versa is not only untrue but has implications for the safety of women and children’.
The key question the Tribunal determined was that Mr Elston’s post was not designed to cause ‘serious harm’ to Cook.
‘Serious distress is not someone getting offended,. I always say you take offence, you don’t give it,’ Mr Elston said.
Mr Elston’s alleged offence had been to share a Daily Mail story about Teddy Cook (pictured), a female-to-male trans Australian activist who landed a job on a World Health Organisation (WHO) expert panel drafting care guidelines for trans and non-binary people
‘(This ruling shows) it’s fine to tell the truth and if you offend some one then so be it.’
Lois McLatchie Miller, senior legal communications officer for ADF International, said the ruling set an important ‘symbolic global precedent’.
‘Online safety acts, inspired by Australia’s eSafety Commissioner, are proliferating across the West,’ she said.
Ms Miller pointed to the EU’s Digital Services Act which seeks to ‘prevent illegal and harmful activities online and the spread of disinformation’ but critics say risks freedom of expression.
She said that these ‘new laws’ needed to be tested and Tuesday’s ruling highlighted the ‘fundamental right to speak the truth online’.
Cook, 45, who describes himself as a ‘professional queer, man of trans experience’, has advocated for taxpayer-funded surgeries for all trans Australians.
His now-private social media posts were awash with X-rated material, including public nudity, bondage parties, trans orgies and even a photo of a man apparently having sex with a dog.
Mr Elston shared a Daily Mail story about Cook’s role as a UN health expert where he referred to Cook as a woman alongside the caption: ‘People who belong in psychiatric wards are writing the guidelines for people who belong in psychiatric wards’.
Ms Grant, the eSafety Commissioner, ordered X to remove the post after Cook complained or face a fine of up to $782,500.
X refused, but eventually geo-blocked the post in Australia.
Yet, in a complete mockery of the ‘removal notice’, Mr Elston subsequently re-shared a picture of the original post, which can be viewed in Australia.
‘The material also contains a statement that implicitly equates gender identity with a psychiatric condition,’ a delegate on behalf of Ms Grant submitted to the tribunal.
‘This statement is deliberately degrading and suggests that all transgender people – and in this case the complainant in particular – have something that is ‘wrong’ about their psychology owing to their gender identity.’
But ART deputy president Mr Donovan was not satisfied Mr Elston intended to cause serious harm with his post.
‘I am satisfied that it is his universal practice to refer to a transgender person by the pronouns that correspond to their biological sex at birth,’ Mr Donovan ruled.
‘I am also satisfied that when he classifies a person as either a man or a woman, he determines which classification to use by reference to their biological sex at birth, rather than the gender related characteristics that they currently express.
‘I am satisfied that he believes doing otherwise has implications for the rights and safety of women and children.’
Musk is yet to comment on the ruling.
Daily Mail Australia approached the eSafety Commission for comment.