Australia’s eSafety Commissioner Julie Inman Grant has returned to court in a dispute that could determine how much informal pressure the government can apply to online platforms to hide lawful content.
The regulator’s appeal stems from its attempt to persuade X to block a post by journalist Celine Baumgarten, an action later ruled unlawful by the Administrative Appeals Tribunal (AAT).
In May 2024, eSafety used X’s legal compliance portal to request that the platform geoblock Baumgarten’s post about a “queer club” running inside a Melbourne primary school.
X restricted access to the post for Australian users for two months.
Baumgarten, represented by the Free Speech Union (FSU) of Australia, successfully challenged the restriction in the AAT earlier this year, with the Tribunal finding that eSafety had acted improperly.
The agency has since appealed that outcome.
Before the Federal Court, eSafety alleged that the issue was not its authority but its intent, trying to convince the court that the AAT “misunderstood the relevance of intention” and that “there was nothing coercive about it using X’s dedicated legal portal to send the informal notice.”
The regulator framed the move as an administrative communication rather than a directive.
As you might expect, judges appeared unconvinced.
Reports from the FSU, which attended the hearing, described the bench as skeptical of eSafety’s interpretation of its own powers.
Justice Jonathan Beach questioned whether eSafety was misusing its submissions “to rewrite the case,” asked whether “the problem is eSafety practice,” and indicated doubt about several of its arguments.
Chief Justice Debra Mortimer pressed the agency on whether it was “asking the court to find facts because its attack on ATT’s findings wasn’t going so well,” said she was “perplexed” by eSafety’s approach, and called its reasoning “very unsatisfactory.”
Justice James Horan asked whether eSafety was relying on “a non-existent power.”
The dispute reaches beyond a single post. By issuing informal “requests” through private channels, the regulator can prompt platforms to suppress speech without invoking its formal powers, leaving no paper trail of a compulsory order and no clear right of appeal.
The case now tests whether eSafety can rely on voluntary compliance mechanisms to achieve outcomes that would otherwise require formal legal authority.
