eSafety Ordered to Review Complaint About Post Criticising Primary School ‘Queer Club’

Hundreds of alerts about content from the eSafety Commission could face further scrutiny in future.

The logo of social media platform X on March 11, 2024. Kirill Kudryavtsev/AFP via Getty Images

A tribunal has ordered Australia’s eSafety Commissioner Julie Inman-Grant reconsider a “complaint alert” about a post criticising a “Queer Club” operating out of a Melbourne primary school.

When activist Celine Baumgarten published an X post critical of the school, it prompted a complaint to the office of the eSafety Commission.

The Queer Club is supposed to cater to years four to six.

Before the Administrative Review Tribunal, eSafety admitted that their investigation of the complaint led them to conclude it did not meet the statutory preconditions for a takedown order.

While eSafety considered it to be “menacing, harassing, or offensive material,” it did not meet the threshold of “[intending] to cause serious harm”—a precondition for a removal notice.

However, because eSafety deemed the post offensive, it used a hitherto unknown “back channel” to contact X and advise it that the commissioner had determined Baumgarten’s words breached the social media platform’s own rules.

As a result, the post was geo-blocked so that people in Australia could not view it.

After being informed by X of the block, Baumgarten went to the Free Speech Union (FSU), which took the case to the Administrative Review Tribunal.

eSafety Argues ‘Alerts’ Not the Same as Formal Takedown Notices

The commissioner told the Tribunal that the intent of sending X a request through a dedicated portal was merely to alert it of a breach of its terms of service and that it was “speculative” to connect the move to its subsequent removal.

eSafety Commissioner Julie Inman Grant at a press conference at Parliament House in Canberra, Australia, June 15, 2021. AAP Image/Mick Tsikas

But Tribunal Chair Justice Emilios Kyrou found that was “not objectively plausible” because eSafety had cited the Online Safety Act and used other terms that made it appear as though it was an official takedown order.

The judge also found eSafety was responsible for considering the legality of issuing “complaint alerts”—something eSafety’s lawyers argued against.

The Tribunal has now ordered that Inman-Grant’s decision in this case be set aside, and ordered her to reconsider the decision.

However, since X has already restored Baumgarten’s post, the only issue that remained is whether the complainant must be notified of the outcome, as would be the case had a formal notice been issued.

What About the ‘Hundreds’ of Informal Alerts Sent by eSafety?

The outcome is a blow for the eSafety Commission, which admitted to the Tribunal that it issued “a few hundred” informal alerts to service providers every year regarding adult cyber-abuse material.

In contrast, just three or four removal notices were issued in the past 12 months.

Effectively, the Tribunal has erased the distinction between the two and made every “complaint alert”—which eSafety was not fully recording—subject to legal review, potentially opening the way for authors of all of the “few hundred” communications complained about by eSafety to seek redress as Baumgarten has done.

That’s already starting to happen, the FSU told the Epoch Times.

“If people find out about the decisions, then they can appeal them. They get 28 days from when they find out,” Reuben Kirkham, the organisation’s Co-director, explained.

“We are not yet aware of any further appeals, but the first round of responses to requests for statements of reasons are only due next week. [The commissioner] has 28 days to respond to each request. She has already replied, in some cases saying she has nothing,” he said.

Dr Reuben Kirkham co-director of the Australian Free Speech Union. Courtesy of the Free Speech Union

“As far as we know, the commissioner has yet to write to end users and inform them of a decision that she has not previously notified them of. We are aware of cases where she actively took steps to conceal them from end users (even where her office claimed it was a ‘formal notice’).”

Whether the use of back channel “complaint alerts” will continue isn’t known, Kirkham said.

“It is possible that the commissioner will continue to act unlawfully, although her lawyers claimed to Senate Estimates on Feb. 25 that some changes have been made to the notice scheme. We do not know what those changes were yet.

“She may also attempt to appeal the decision in Baumgarten. She has about three more weeks to decide this. We don’t think she has any legitimate legal basis for an appeal. The commissioner appeared two weeks ago ‘under protest’ at the directions hearing [and] has conceded she had no lawful basis to issue any kind of formal notice under the Act in the Baumgarten matter.”

Because it elevates informal approaches from government entities to the status of formal notices, the decision could also spell trouble for a wide range of other government agencies, Kirkham speculated, “for example, attempts to get platforms to remove COVID-related material that did not come from the eSafety commissioner’s office.”

eSafety Says Social Platforms Happy to Work Together

A spokesperson for the eSafety commissioner told The Epoch Times that it acknowledged the Tribunal found a complaint alert “issued in that instance” was a reviewable decision.

“In our experience, platforms often appreciate having trusted flaggers draw their attention to material that may breach their terms of service. This approach also reduces regulatory burden on service providers compared to formal processes.

“The recently published independent Statutory Review of the Online Safety Act 2021 references this approach, recommending that eSafety retain and clarify the practice of informally contacting platforms.

“The Review highlights that this method often leads to quicker resolutions for individuals who are frequently in severe distress,” the spokesperson said.

“We are actively considering the decision and are unable to comment further at this time.”