eSafety acknowledges the Full Federal Court’s judgment in the matter of eSafety Commissioner v Baumgarten.
eSafety appealed this matter to the Full Court to seek clarification on whether the complaint notification made to X was a reviewable decision by the ART.
Informal notifications are a key tool for regulators and law enforcement nationally. The use of informal notifications has broad significance, particularly as they reduce the regulatory burden on companies and achieve prompt harms remediation for Australian complainants.
Justice Horan said in his judgment that he was inclined to the view that the Commissioner’s statutory functions and powers can extend to engaging with users and providers of social media and internet services by making requests that do not have immediate legal consequences. This was welcomed by eSafety.
The other members of the Court found it unnecessary to express a concluded view on this issue.
Following the original decision in the Administrative Review Tribunal (ART) in this matter in February 2025, eSafety took steps to update its procedures in relation to both informal notifications and formal removal notices to online platforms.
These included:
- Changing its complaint notification template to further clarify that the correspondence is not a legal notice, meaning the platform is not legally required to take any specific actions.
- Making greater use of formal service provider notifications, which are statements given to service providers to notify them of material, where legislative thresholds are met.
The Online Safety Act already requires eSafety to publish data on the number of informal requests it makes every year. This information can be found annually in its Annual Report.
Each adult cyber abuse complaint eSafety receives is assessed on its merits against the thresholds in the Online Safety Act.
eSafety undertakes an assessment of whether an ordinary reasonable person would conclude it likely the material was intended to cause serious harm to a particular Australian adult and would regard the material as being, in all the circumstances, menacing, harassing or offensive.
The complaint made to eSafety was assessed as not meeting the legislative threshold for adult cyber abuse. However, a complaint notification was made to X to request that X consider the complaint against its terms of service.
eSafety’s complaint schemes were designed by Parliament to provide a safety net for Australians impacted by online harm when platforms fail to act.
In serving the Australian public, eSafety has a high success rate in remediating serious online harms.
As well as providing a vital channel to report illegal material such as child sexual exploitation material, eSafety’s complaint schemes offer direct assistance to children and adults suffering serious online abuse, including doxing, cyberbullying, harassment with intent to cause harm and the sharing of intimate images and deepfakes without consent.
A summary of the judgment can be found here.