Press release from FSU Australia: The eSafety Commissioner's latest legal loss (including serious judicial criticism)

The eSafety Commissioner's latest legal loss (including serious judicial criticism)

(*Ed - The eSafety Commission is a government agency which describes itself as: "eSafety supports individuals and promotes online safety for all Australians. This includes providing information and tools to help manage online safety risks, and administering schemes to tackle severe online abuse targeted at an adult, cyberbullying material targeted at an Australian child, the non-consensual sharing of intimate images, and harmful online material.")

Celine Baumgarten, supported by the Free Speech Union, has emerged victorious in her case against Australia's eSafety Commissioner at the Administrative Review Tribunal. Justice Kyrou's decision made it clear that there were very serious concerns with the existing practices of the Commissioner's office. "The Administrative Appeals Tribunal has exposed the eSafety Commissioner's scheme of sending "informal takedown orders" that can't be reviewed." says Dr Reuben Kirkham, Co-Director of the Free Speech Union of Australia. "The Tribunal has made it clear that these decisions can be reviewed, despite the Commissioner instructing a Kings Counsel to try and argue otherwise."

"The decision is about what we contend is a scheme that the eSafety Commissioner uses to evade scrutiny. eSafety claim they only issued an "informal notice" and that it can't be legally challenged. This is a tactic they have been using in 99% of their cases to try and avoid accountability for their censorious behaviour. In other words, the eSafety Commissioner is trying to avoid all accountability. This decision shows they are not above the law." "This was the first hearing of the new Guidance and Appeals Panel, which was established to prevent systematic misuse of power by the state like Robodebt. Given what it has ruled, surely the eSafety Commissioner's practice of sending informal notices cannot continue. We hope the Commissioner will now do the right thing and withdraw her unlawful censorship scheme. She may also wish to consider resigning."

Key points from the decision:

A key part of the Commissioner's case was held to be 'not objectively plausible' (at [140]).

Justice Kyrou then went on to make observations in furtherance of 'improvement of the transparency and quality of government decision-making' at [168], observing the following concerns:

• That given 'the potentially serious consequences for end users of online services resulting from the
• Commissioner's use of complaint alerts
  and her advocacy role and providers' terms enforcement role, [the present situation] is undesirable' [173].
• The Commissioner's approach of
  'Complaint alerts ... involve[s] less accountability than removal notices because a formal written removal notice and a statement of reasons are not given.' [170(c)].

• If the Commissioner's view were correct, the end user would be deprived of one of the features of the balance that the OSA strikes between the community's right to
  free speech and its right to be protected from cyber-abuse material targeted at an Australian adult.' [170 (d)].
• That 'there are no clear, objective criteria for determining when a complaint alert can be given' and her approach risks ' inconsistent action based on the subjective and potentially undocumented views of individual investigators' [170(b)].
• The Commissioner's practice also removes the rights of victims of cyber abuse who make complaints to challenge the Commissioner's decisions: [174].
• Her practice may be 'improper', especially given that her approach means that 'third parties might be deprived of [their] those rights of review if the regulator acts informally rather than formally' [172].