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An online activist behind a post attacking a Melbourne primary school teacher who facilitated a queer club for her students has had a courtroom win over the e-safety watchdog.
A decision by the Federal Court on Wednesday in favour of Celine Baumgarten, a Sydney-based member of the US-founded group “Gays Against Groomers”, has opened the door to legal challenges against hundreds of decisions made each year by the office of Australia’s eSafety Commissioner.
The case began after Baumgarten, who campaigns against trans rights, took to social media site X two years ago to attack the Melbourne teacher for facilitating a queer club for students at their primary school and posted the educator’s social media handles online.
After a complaint was lodged to the office of eSafety commissioner Julie Inman-Grant, an employee of her office contacted X, alerting the Elon Musk-owned social media giant that the post might be in breach of the platform’s terms of use.
The commissioner’s office alleged that the post “appeared” to be “seeking to intimidate and harass” the teacher and had exposed her to potential harm by posting photos, details of her workplace and links to her social media accounts.
Inman-Grant’s office concluded that the post, despite being considered “menacing, harassing or offensive”, did not meet the legal bar to constitute “cyber-abuse material” which could have triggered a legally binding removal notice demand.
The commissioner’s office issued what it considered an informal alert to X, one of “hundreds” it says it sends to online platforms each year.
X acted on the commissioner’s office alert by geo-blocking the post from Australian users of the site, prompting an appeal by Baumgarten, with legal support by conservative legal fund The Free Speech Union, to the Administrative Review Tribunal.
The commissioner argued before the tribunal that the approach to X was not subject to appeal because it considered such action to be an informal approach to the platform, rather than official take-down demand issued under section 88 of the Online Safety Act.
But the tribunal rejected the commissioner’s argument and accepted the position that Baumgarten’s lawyer put forward: that X was likely to have believed that the alert by the commissioner’s office carried legal weight, influencing the platform’s decision to geo-block the activist’s post.
The commissioner was ordered by the tribunal to reconsider its decision to approach X over the post, but the Commonwealth government safety authority appealed to the Federal Court.
But on Wednesday, three justices of the Federal Court backed the tribunal’s finding that the commissioner’s office’s complaint to X amounted in fact to a take-down order under section 88 of the act.
The commissioner’s office, which did not respond on Wednesday to a request for comment, must now reconsider its decision to approach X about the complaint or seek further appeals to a higher court.
Baumgarten could not be contacted for comment on Wednesday but posted triumphantly on X after the judgment.
“I won, again,” the activist posted.
“Free speech and parental rights are always something I will fight for.”
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