The eSafety Commissioner’s covert censorship of social media via an informal, unaccountable process is facing scrutiny after a significant legal win for free speech activists.

Gays Against Groomers activist Celine Baumgarten has won the latest round of her legal battle against the online safety regulator, which sought to censor a post she made to social media in May of last year sharing publicly available information about a Melbourne primary school queer club and its organiser.

Ms Baumgarten’s post was geo-blocked on social media platform X after eSafety sent an informal notice alleging that her post appeared to “intimidate and harass the complainant,” despite the regulator admitting during proceedings that it did not meet the legal threshold for removal.

With legal assistance from the Free Speech Union of Australia (FSU Australia), Ms Baumgarten attempted to appeal the eSafety notice, but the Commissioner, Julie Inman Grant, argued that the notice could not be appealed because it was ‘informal.’

However, in a decision on 5 February, Justice Emilio Kyrou ruled that the informal notice can be appealed, levying criticisms of eSafety’s informal notice system and “potentially serious consequences” it has for social media users.

“The results of this case prove… that the eSafety and her office are acting unlawfully,” a triumphant Baumgarten told Sky News’s Outsiders on Sunday evening.

“They rely on what they call informal notices to send to social media companies, and they… use their aura of authority to censor posts that don’t meet the required standards in the Online Safety Act (OSA).”

This is not the first time the eSafety Commissioner has been pulled up for overstepping her statutory bounds. Last year, a judge ruled that Ms Inman Grant’s attempt to enforce a global ban on footage of the Wakeley stabbing incident was ‘not reasonable.’

This latest legal decision calls into question the validity of eSafety’s use of the informal scheme and has the potential to empower users whose content has been removed from social media sites under the informal notice system.

“The Administrative Review Tribunal has exposed the eSafety Commissioner’s scheme of sending ‘informal takedown orders’ that can’t be reviewed,” said Dr Reuben Kirkham, Co-Director of the FSU Australia, in a statement after the decision.

“This is a tactic they have been using in 99 per cent of their cases to try and avoid accountability for their censorious behaviour,” said Dr Kirkham.

eSafety’s Annual Report 2023-2024 shows that the vast majority of notices that the regulator issued to social media platforms during this period were informal. Under the Adult Cyber Abuse scheme, eSafety made 383 informal notifications, with platforms removing material in 284 (74 per cent) of cases. Only three formal removal notices were issued during this time.

During the Baumgarten and eSafety Commissioner proceedings, Ms Inman Grant argued that informal cooperative mechanisms are preferable to resorting to eSafety using its coercive powers.

However, Justice Kyrou said that eSafety’s reliance on the informal notice process as its “predominant regulatory mechanism” resulted in a “less transparent” system that failed to strike “the balance between the community’s right to free speech and its right to be protected from cyber-abuse material targeted at an Australian adult.”

Furthermore, Justice Kyrou suggested that the eSafety Commissioner had acted outside of her statutory powers as there is “no express statutory basis” for the Commissioner making informal alerts to platforms about content that does not meet the legal threshold for removal.

Such an arrangement has “potentially serious consequences,” said Justice Kyrou, in that it not only circumvents the rights of end-users whose content has been taken down without recourse, but also of the victims of cyber abuse who make complaints to eSafety but cannot challenge the Commissioner’s ‘informal’ decisions on whether or not to act on the complaint.

Ms Baumgarten’s case will now proceed to appeal unless the eSafety Commissioner withdraws.

Next, the Ms Inman Grant will face Canadian activist Chris Elston, better known as Billboard Chris for wearing placards protesting against child gender medicine, at a tribunal in March over her censorship of a social media post challenging gender ideology.

Ms Inman Grant’s legal challenges over censorship of politically sensitive material and unaccountable practices have provided an unfortunate distraction from eSafety’s necessary core work of protecting children online and protecting all Australians from image-based abuse.

Last year, eSafety successfully removed 98 per cent of image-based abuse material, 82 per cent of child cyberbullying content, and referred 130 investigations relating to child sexual abuse material to the Australian Federal Police.

On Tuesday, which marked Safer Internet Day, the eSafety Commissioner announced new research showing that cyberbullying reports to eSafety have surged by more than 450 per cent in the past five years, and called for “all Australians to help make the world a safer, more positive place.”

“We know 45 per cent of children aged between 8 and 17 years-old have been treated in a hurtful or nasty way online,” Ms Inman Grant said.

“This Safer Internet Day you can be a part of the solution, by taking simple steps such as being kind and respectful to others – as adults, we should continue to model that positive, pro-social behaviour.”

Parents and educators can access the eSafety Commissioner’s Safer Internet Day toolkits to learn how they can support children in staying safe online.