Free speech advocates had a victory last week, with the eSafety Commissioner suffering a set-back after the Administrative Review Tribunal (ART) ruled that an “informal notice” could be reviewed in the same way a formal notice could.

The “informal notice” was sent to social media platform X (formerly Twitter) asking the social media giant to remove a social media post by Celine Baumgarten in May 2024.

The eSafety Commissioner argued that the directive was an informal “complaint alert”, as opposed to a formal removal notice, so did not give Ms Baumgarten the same legal rights of review.

The ART disagreed, deciding that such notices can be appealed.

The Tribunal’s decision comes two months before it hears HRLA client “Billboard Chris” Elston’s case against the eSafety Commissioner in March.

In Billboard Chris’s case, a formal notice was issued requiring X to remove Chris’s post criticising transgender ideology.

While the legal issues are different, both cases involve the eSafety Commissioner using her government authority to censor speech that goes against a particular cultural narrative.

Ms Baumgarten had posted a tweet criticising a “Queer Club” in a Melbourne primary school, questioning whether it was appropriate for primary-aged children.

Because the post did not meet the required threshold for issuing a formal notice, the Commissioner sent an informal “complaint alert” instead.

X initially interpreted the message as a lawful demand under the Online Safety Act, and subsequently geoblocked it in Australia.

The Tribunal ruled that the eSafety’s message amounted “as a matter of fact to a removal notice requiring X to remove the Post even though it was not a legally effective removal notice” under the Act.

This ruling has significant implications for the eSafety Commissioner’s practices.

It challenges the use of “informal” takedown requests, emphasising that such actions are subject to legal scrutiny and review.

The decision underscores the importance of transparency and accountability in the Commissioner’s operations, particularly concerning actions that impact individuals’ freedom of expression online.

In his decision, Justice Kyrou noted the lack of accountability and the community’s right to free speech, noting the “potentially serious consequences for end users of online services resulting from the Commissioner’s use of complaint alerts and her advocacy role”.

The case has garnered attention from various groups advocating for free speech.

“This is a landmark decision and means that the eSafety Commissioner’s program of secret censorship should be no more,” said Reuben Kirkham of the Free Speech Union of Australia, which represented Ms Baumgarten.

The decision is encouraging ahead of the Billboard Chris case coming up in March.

The ruling is a reminder of the importance of checks and balances on government power, and that the freedom of Australians to live in accordance with their faith and speak the truth freely cannot be taken for granted.

Billboard Chris’s trial begins 31 March.