“A win for free speech in Australia.” 

This is what Elon Musk’s lawyers have said after overturning government orders blocking a post claiming transgender people belonged in a mental institution. 

Musk’s social media platform X, formerly known as Twitter, and Canadian activist Christopher Elston have been in a legal battle with the eSafety Commissioner. 

Elston reposted a Daily Mail article in February last year about Australian transgender man Teddy Cook and his appointment by the World Health Organisation to advise on issues of transgender and non-binary people’s health.

In the post, Elston called Cook a female and said trans people “belong in psychiatric wards”.

When Cook came across the post, he made a complaint to the eSafety Commissioner, which moved to block the post. 

Elston’s words were degrading to Cook and the broader transgender community, the online regulator said. 

The activist’s X account allegedly had more than 395,000 followers and the post was viewed 377,000 times and reposted 6000 times in less than a fortnight. 

After X and Elston challenged the notice, the Administrative Review Tribunal was asked to determine whether an everyday person would consider the post as cyberabuse. 

Tribunal member Damien O’Donovan found late on Tuesday that the post did not intend to cause serious harm.

However, he found the ordinary person would take away that transgender people belong in a psychiatric ward.

“The post, although phrased offensively, is consistent with views Mr Elston has expressed elsewhere in circumstances where the expression of the view had no malicious intent,” O’Donovan said.

X, through its lawyers at Thomson Geer, welcomed the decision.

“This is another example of the eSafety Commissioner overreaching in her role and making politically motivated decisions to moderate what she considers Australians should and shouldn’t read and hear from the outside world.”

Elston said the decision sends a clear message to the government that it “does not have the authority to silence peaceful expression”.

In the tribunal hearing, lawyers for Elston denied he intended to cause serious harm.

The Canadian said he didn’t know Cook, reposted public information and usually misgendered people in his posts.

A spokesperson for the eSafety Commissioner noted the decision saying the regulator would continue to take seriously the responsibility of amending harms and protecting Australians.

The decision is the most recent chapter in a long-running legal battle between the social media giant and online safety regulator. 

In May, the commissioner took X to court wanting the platform to do more to keep Australians safe online. 

The regulator also issued a penalty of $610,500 to the social media giant in February 2023, alleging it failed to adequately respond to questions about how it tackled harmful content on its platform, including child sexual abuse material.

X is disputing the fine. 

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