Australia's eSafety Commissioner, established under the Online Safety Act 2021 to protect citizens from online harms, has increasingly come under scrutiny for overstepping its mandate and undermining free speech. The recent ruling by the Administrative Review Tribunal (ART) on August 6, 2025, marks the third time the eSafety Commissioner, Julie Inman Grant, has been rebuked for attempting to evade legal oversight by using informal methods to pressure tech companies into censoring content. I argue that the eSafety Office's reliance on informal takedown notices, its subjective application of vaguely defined standards, and its resistance to accountability reveal a fundamental flaw in its structure and operation, transforming it into a tool for censorship and overreach.
The eSafety Office's primary function is to address online harms such as cyberbullying, non-consensual sharing of intimate images, and extreme content. However, its practice of issuing hundreds of informal "back channel" alerts to tech companies, compared to just three or four formal removal notices annually, raises serious concerns about transparency and accountability. These informal notices, which lack the legal weight of formal takedown orders, allow the Commissioner to influence content moderation without triggering the oversight mechanisms built into the Online Safety Act. As the ART's Deputy President Peter Britten-Jones noted in the August 2025 ruling, the Commissioner's claim that informal actions are not "reviewable decisions" is "artificial and impractical," as they involve assessments and conclusions that affect complainants' rights.
The case involving the Free Speech Union (FSU) of Australia exemplifies this issue. In a December 2024 interview with the Council of Foreign Relations, Julie Inman Grant accused the FSU of being a "front group" for X and Elon Musk, alleging it orchestrated a campaign to increase Freedom of Information (FOI) requests by 3,000 percent and implying it opposed child safety. FSU Director Reuben Kirkham challenged these claims, arguing they were false, defamatory, and targeted him personally. When the eSafety Office dismissed his complaint, claiming it did not meet the criteria for formal action, and refused to provide a statement of reasons, Kirkham appealed to the ART. The Tribunal's ruling that the Commissioner's actions constituted a reviewable decision underscores a recurring pattern: the eSafety Office's attempt to sidestep oversight by framing its interventions as informal.
This is not an isolated incident. The eSafety Commissioner has lost similar arguments twice before, including a case where an informal request was made to X to geo-block a post in Australia. The Tribunal's consistent rejection of Inman Grant's position highlights a systemic issue: the eSafety Office's reliance on informal mechanisms allows it to exert significant influence over online speech without adhering to the legal safeguards designed to protect freedom of expression.
The eSafety Office's approach to content moderation is further undermined by its subjective interpretation of "cyber abuse." The Online Safety Act defines adult cyber abuse as material that targets an individual, is menacing, harassing, or offensive, and intends to cause serious harm. However, the Commissioner's application of this standard has been inconsistent and overly broad, particularly in cases involving controversial speech on gender and identity issues. For instance, in July 2025, the ART overturned an eSafety order to remove a post by Canadian activist, who criticised the appointment of a transgender individualto a World Health Organization panel, using biologically accurate pronouns. The Tribunal found no evidence of intent to cause serious harm, ruling that the post did not constitute cyber abuse. This decision highlighted the Commissioner's tendency to equate ideological disagreement with abuse, a dangerous precedent for free speech.
The eSafety Office's actions in these cases suggest a bias toward censoring speech that challenges prevailing narratives, particularly on gender ideology. By labelling dissent as "offensive" or "harmful," the Commissioner risks stifling legitimate debate on issues of public interest. The U.S. House Judiciary Committee's July 2025 report further criticised the eSafety Office for its expansive censorship powers, noting that its actions reflect a broader global trend toward state-enforced speech restrictions. This external scrutiny underscores the danger of allowing a single office to unilaterally determine what constitutes acceptable speech, especially when its decisions lack clear, objective criteria.
The eSafety Office's claim that it has "no duty" toward complainants, as argued in the FSU case, is particularly troubling. As Kirkham noted, many who seek the Commissioner's intervention are vulnerable individuals facing severe online abuse, such as doxing, stalking, or non-consensual image sharing. By relying on informal methods, the eSafety Office denies these complainants the right to challenge its decisions through legal review, effectively leaving them without recourse. The ART's ruling that such actions are reviewable, is a step toward accountability, but it does not address the broader issue: the eSafety Office's structure incentivises opaque, unaccountable decision-making that undermines trust in its ability to protect Australians.
This lack of accountability is compounded by the financial burden on taxpayers. The eSafety Office's repeated legal battles to defend its informal practices, including hiring Senior Counsel at significant expense, have been criticised as a misuse of public funds. Kirkham's assertion that "the taxpayer has yet again footed the bill for the Commissioner's lack of understanding" highlights a fundamental flaw: an office meant to serve the public is instead embroiled in costly disputes over its own overreach.
The eSafety Office's actions have drawn international attention, with posts on X reflecting public concern about its expanding powers. One user, @QBCCIntegrity, described the Commissioner's authority as "unchecked," accusing it of forcing Australians to identify themselves online and monitoring their movements, a claim echoed by Liberal Senator Maria Kovacic in a July 2025 Senate motion calling for an inquiry into eSafety's overreach. Another user, @FSUofAustralia, celebrated the ART's ruling as a victory against censorship, emphasising the office's failure to uphold its duties to the public. These sentiments reflect a growing perception that the eSafety Office opts for control over protecting free expression.
The eSafety Office's practices also have implications beyond Australia. The U.S. State Department's condemnation of its censorship efforts as part of a global trend toward coercive state control, highlights the risk of other nations adopting similar models. The case of Isabella Cêpa, a Brazilian feminist granted refugee status in Europe for facing persecution over gender-critical speech, illustrates how far such policies can go when left unchecked. Brazil's expansion of "social racism" laws to include transphobia, resulting in potential 25-year prison sentences for "misgendering," serves as a cautionary tale for Australia, where the eSafety Office's informal censorship could pave the way for more formalised speech restrictions.
In conclusion, the eSafety Office was established to protect Australians from genuine online harms, but its current practices reveal a fundamental flaw in its design and execution. By relying on informal takedown notices, applying subjective standards to controversial speech, and resisting accountability, the office undermines the very principles of transparency and fairness it claims to uphold. The ART's repeated rulings against the Commissioner demonstrate that these issues are not mere oversights but systemic failures that require reform.
To restore trust, the eSafety Office must adopt formal, transparent processes that align with the Online Safety Act's legal safeguards. It should adopt clear, objective criteria for defining cyber abuse, ensuring that ideological disagreements are not conflated with harm. Most critically, it must embrace accountability to complainants and the public, recognising that its actions have real-world consequences for vulnerable individuals and free speech. Without these changes, the eSafety Office risks becoming a tool for censorship, eroding democratic values in Australia and serving as a warning to the world about the dangers of unchecked regulatory power.
"Australia's online safety chief, Julie Inman Grant, has again been told by a federal tribunal that she cannot avoid legal review by using informal methods to contact tech companies instead of issuing a formal takedown notice under the Online Safety Act.
The Administrative Review Tribunal (ART) said this is the third time eSafety has failed in such an attempt, but the first time a complaint has centred on an online comment by the Commissioner herself.
The case involved the Free Speech Union (FSU) of Australia and a December 2024 interview with Inman Grant published on the Council of Foreign Relations website.
In it, she was quoted as saying, "There are front groups; one is called Free Speech Union of Australia, and they've run a campaign to increase the number of FOIs (Freedom of Information Requests) by 3,000 percent."
FSU Director Reuben Kirkham complained to the Office of eSafety, alleging that her statements were false, damaging, and targeted him.
"The eSafety Commissioner herself has been raising conspiracy theories about myself," he wrote
"The material raises a conspiracy theory that the Free Speech Union is a 'front group' for X and Elon Musk and that we conducted a 'campaign to increase the number of FOIs by 3,000 per cent.'
"It also wrongly implies that the Free Speech Union is against 'child safety.' By extension, as a director and the only employee focused on the eSafety Commissioner, this is really about myself."
However, the Office of eSafety rejected his complaint, saying the material did not target a particular Australian adult and therefore did not meet the criteria for formal removal action.
When Kirkham requested a formal statement of reasons, Inman Grant refused, arguing no "reviewable decision" had been made, describing her actions instead as a "non-giving of a notice."
Hundreds of "Back Channel" Messages to Tech CompaniesInman Grant has previously argued that actions short of a formal takedown notice are outside Tribunal oversight, an argument she has now lost three times.
In a previous case, she used an informal "back channel" to ask X to geo-block a post in Australia.
During that matter, the eSafety Commission admitted it sends "a few hundred" informal alerts to service providers annually, compared with just three or four formal removal notices in the past year.
In this latest decision, Tribunal Deputy President Peter Britten-Jones said it did not matter if the Commissioner subjectively believed she was not refusing a removal notice.
What mattered, he said, was that she made an assessment, reached a conclusion, and notified the outcome, actions that constitute a reviewable decision.
Britten-Jones criticised what appeared to be a "two-stage process" in which the Commissioner made a preliminary determination without considering formal removal action, calling it "artificial and impractical."
The Tribunal ordered eSafety to provide Kirkham with a statement of reasons within 28 days.
Informal Takedowns Sidestep Oversight, Hurt Abuse Victims: FSU DirectorFollowing the ruling, Kirkham said many people who deal with the eSafety Commissioner are "vulnerable individuals" facing serious online abuse, including those subject to indecent image exposure, doxxing, stalking, and other severe forms of cyberabuse.
He argued that by relying on informal methods to pressure tech companies—rather than issuing formal takedown notices—the Commissioner risks sidestepping legal oversight and denying complainants the right to challenge her actions.
"The idea that the Commissioner has no obligations towards these complainants is remarkable," he said.
"Today's decision shows [her] office has once again seriously misunderstood their duties towards the general public.
"Worst of all, it's the taxpayer who has yet again footed the bill for the Commissioner's lack of understanding, with a Senior Counsel engaged at great expense."