By Duncan Evans
Elon Musk鈥檚 X and Canadian activist Chris Elston have scored a major win against the eSafety Commission and transgender activist Teddy Cook in a landmark ruling from the Administrative Review Tribunal.
The ruling, delivered on Tuesday evening, rescinds a takedown order issued by eSafety Commissioner Julie Inman Grant over a controversial social media post on X from February 2024.
In the post, Mr Elston slammed the proposed appointment of Mr Cook, a biological female, to a World Health Organisation panel on healthcare delivery.
Mr Elston, who goes by the X name Billboard Chris, took aim at WHO鈥檚 panel of experts hired to draft policy regarding trans people while also misgendering Mr Cook.
The post reads: 鈥淭his woman (yes, she鈥檚 female) is part of a panel of 20 鈥榚xperts鈥 hired by the WHO to draft their policy on caring for 鈥榯rans people鈥. People who belong in psychiatric wards are writing the guidelines for people who belong in psychiatric wards.鈥
Ms Grant labelled the remarks 鈥渄egrading鈥 and issued a takedown notice to X on March 22, threatening the company with a fine of up to $782,500 for any refusal to remove the post.
X complied and the post was blocked, but the company and Mr Elston filed a legal challenge against the notice, and on Tuesday evening, ART deputy president O鈥橠onovan ruled in their favour, setting aside the removal order.
鈥淭he post, although phrased offensively, is consistent with views Mr Elston has expressed elsewhere in circumstances where the expression of the view had no malicious intent,鈥 Mr O鈥橠onovan said.
鈥淔or example, his statement placed on billboards that he is prepared to wear in public 鈥榗hildren are never born in the wrong body鈥 expresses the same idea about the immutability of biology that he expresses, albeit much more provocatively, in the post.
鈥淲hen 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.鈥
Mr O鈥橠onovan also said there was no evidence Mr Elston intended for Mr Cook to read or receive the post.
鈥淚n the absence of any evidence that Mr Elston intended that Mr Cook would receive and read the post, and in light of the broader explanation as to why Mr Elston made the post, I am satisfied that an ordinary reasonable person would not conclude that it is likely that the post was intended to have an effect of causing serious harm to Mr Cook,鈥 the ruling reads.
The ruling centred around the Online Safety Act, which offers a reporting scheme for adult cyber abuse.
The Act defines adult cyber abuse as material targeting a particular Australian adult that is both intended to cause serious harm and is also menacing, harassing or offensive in all circumstances.
If the material meets both of these two criteria, eSafety holds the power to order its removal.
The ruling has been heralded in some quarters as a victory for freedom of speech.
Victorian Liberal parliamentarian Moira Deeming celebrated the ruling on X, writing, 鈥淲ow! Than you Billboard Chris and Elon Musk.鈥
Alliance Defending Freedom International executive director Paul Coleman called the ruling a 鈥渄ecisive win鈥 for free speech.
鈥淚n 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,鈥 he said.
鈥淭his is a victory not just for Billboard Chris but for every Australian 鈥 and indeed every citizen who values the fundamental right to free speech.鈥
Mr Cook was formerly ACON鈥檚 director of LGBTQ+ community health.
The eSafety Commission has been contacted for comment.