Australia’s eSafety Commissioner is in another legal showdown with Elon Musk’s social media platform X.

Last year the Administrative Review Tribunal found the Commissioner had wrongly censored a post by HRLA client “Billboard Chris” Elston criticising a transgender activist.

Now she has has threatened to fine the platform $910,000 if it does not remove a 2024 article about an Australian Medical Association employee who posted pornographic transgender material online.

Commissioner Julie Inman Grant had initially assessed the complaint in 2024 about the article, posted by feminist writer Genevieve Gluck to her Substack, and found it did not meet the Adult Cyber Abuse threshold under the Online Safety Act.

Last week, following an appeal to the Administrative Review Tribunal by the employee, she reversed that finding and threatened X with the fine if the article is not removed.

The statute she is applying sets a specific and high bar: the content must constitute “serious cyber-abuse meant to cause physical or psychological harm, surpassing mere offence”. The Commissioner applied that threshold in 2024 and found the article fell short.

The article has not changed. What changed was the Tribunal appeal and fresh evidence of alleged harm submitted by the complainant.

The Commissioner has now pursued this removal power against gender-critical commentary on three occasions.

She has lost every time.

HRLA successfully represented Chris Elston last year, when the Administrative Review Tribunal ruled in Mr Elston’s favour after the Commissioner ordered X to remove his post referencing publicly-available material that she characterised as cyber abuse.

In February, the Full Federal Court found the Commissioner had improperly issued a removal notice against children’s rights activist Celine Baumgarten over a post about a primary school “Queer Club”, criticising Grant’s litigation conduct in the process.

There has been no finding of cyber-abuse against Elston or Baumgarten or an established legal authority for the Commissioner’s position, yet the notices continue.

The Elston decision establishes the applicable principle. Accurately reporting a public figure’s publicly-available conduct does not, in itself, constitute serious cyber abuse under the Online Safety Act.

Ms Gluck reported – with screenshots and sourced material – what the AMA Victoria employee had himself published in public online forums. The reasoning the Tribunal applied in Elston applies here.

The Online Safety Act is not intended to shield public figures from journalism about their publicly-posted conduct.

That is not what the Online Safety Act was designed to catch.

HRLA helped establish that precedent in the Billboard Chris case and will continue to defend the free speech rights that decision affirmed.