Australia: Administrative Review Tribunal issued ruling in cyber-abuse classification under Online Safety Act (X Corp. and Elston v eSafety Commissioner) (ART Case Nos. 2024/2582 and 2024/2583)

On 1 July 2025, the Administrative Review Tribunal (ART) set aside the decision of the eSafety Commissioner to issue a removal notice in the matter of X Corp. v eSafety Commissioner and Christopher Elston v eSafety Commissioner, in relation to a social media post authored by Christopher Elston. The Tribunal concluded that the material did not satisfy the statutory threshold for classification as "cyber-abuse material targeted at an Australian adult" under section 7 of the Online Safety Act 2021. In March 2024, X Corp. was ordered by the eSafety Commissioner to remove a post by Mr Elston that criticised an individual appointed by the World Health Organisation as an expert on transgender issues, with non-compliance subject to a potential penalty of approximately AUD 800,000. The Tribunal found that the post, shared on the X platform and referencing an article about transgender activist Teddy Cook, did not meet the Intention Element, namely that an ordinary reasonable person would conclude it was likely the material was intended to have the effect of causing serious harm to Mr Cook. The Tribunal determined that this assessment required consideration of all relevant contextual evidence, not merely the post and its immediate surroundings, and rejected the Commissioner’s reliance on a restricted evidentiary framework derived from defamation law. It concluded that the post did not include Mr Cook’s handle or otherwise suggest it was intended to be drawn to his attention, and there was insufficient evidence to infer an intention to cause serious psychological harm or distress beyond ordinary emotional reactions. The Tribunal confirmed that while rapid regulatory response is permissible, broader factual material must be considered during review to ensure due process and proportionality within the statutory framework.