Legal proceedings involving eSafety

Court file number: VID390/2025; appeal from [2025] ARTA 59 and [2025] ARTA 153

Status: Finalised

Issue: Appeal brought by eSafety from a decision of the ART that it had jurisdiction to review an informal complaint alert given to X Corp. by eSafety which asked X Corp. to consider whether a post made by Ms Baumgarten had contravened X Corp.’s terms of service.

Decision: On the first question of law the subject of the appeal, the Full Court determined that the facts as found by the ART permitted it to find that it had jurisdiction to hear and determine Ms Baumgarten’s application for merits review. It was unnecessary to determine the second or third questions of law, as they related to the ART’s findings of fact which were not critical to its decision.

Consistent with eSafety’s position, Justice Horan observed at [247] (emphasis added):

“For present purposes, it is unnecessary to consider the source of any power of the Commissioner to escalate complaints by requesting a service provider to review material for possible breaches of its policies or terms of service. I am 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, in order to promote online safety and to support and encourage the implementation of measures to improve online safety for Australians: see e.g. ss 27(1)(b), (c), (l), (m), (s) and 28 of the OS Act. For such purposes, “online safety for Australians” is defined in s 5 to mean “the capacity of Australians to use social media services and electronic services in a safe manner”.

Judgment available on the Federal Court website.

ART file number: 2024/2579

Status: Finalised

Issue: This matter concerns the Basic Online Safety Expectations notice given to X Corp in March 2024. The main issue concerned ‘manner and form’ and whether the Commissioner has the power to (a) ask questions; and (b) ask questions which are framed by reference to a particular subtopic (in this case, terrorist and violent extremist material).

Decision: In summary, the Tribunal found that the Commissioner has the power to ask questions, and those questions must be framed by reference to the Basic Online Safety Expectations.

Decision available on the AustLII.

Court file number: VID1186/2024 - related to VID956/2023 and VID1092/2023

Status: Currently before the Court.

Issue: X Corp have appealed the Court’s decision to dismiss X Corp's application in VID956/2023. The Full Court heard the matter on 26 March 2025, and judgment was reserved.

Court file number: VID956/2023 - related to VID1092/2023

Status: Finalised

Issue: Judicial review of eSafety's reliance on a non-periodic reporting notice given in February 2023 under the Online Safety Act and eSafety's giving of a service provider notification and infringement notice to X Corp.

Decision: X Corp's application dismissed.

Judgment available on the Federal Court website.

Relevant eSafety updates:

• Second set of tech giants falling short in tackling child sexual exploitation material, sexual extortion, livestreaming of abuse (16/10/2023)
• Twitter, TikTok and Google forced to answer tough questions about online child abuse (23/2/2023)
• eSafety statement: Federal Court judgment (4/10/2024)

eSafety's relevant regulatory guidance:

• Basic Online Safety Expectations Regulatory Guidance

Court file number: VID1092/2023 - related to VID956/2023 and VID1186/2024

Status: Currently before the Court

Issue: Alleged non-compliance with a non-periodic reporting notice given in February 2023 under the Online Safety Act. This matter has been stayed pending the outcome of VID956/2023.

For latest hearing updates, and to review any orders handed down by the Court and other relevant information, please visit the Commonwealth Courts Portal.

Relevant eSafety updates:

• eSafety initiates civil penalty proceedings against X Corp. (21/12/2023)
• Second set of tech giants falling short in tackling child sexual exploitation material, sexual extortion, livestreaming of abuse (16/10/2023)
• Twitter, TikTok and Google forced to answer tough questions about online child abuse (23/2/2023)

eSafety's relevant regulatory guidance:

• Basic Online Safety Expectations Regulatory Guidance

Court file number: NSD474/2024 

Status: Discontinued

Issue: Alleged non-compliance with class 1 removal notice issued in April 2024 under the Online Safety Act.

Judgments available on the Federal Court website.

Relevant eSafety updates:

• Statement from the eSafety Commissioner re: Federal Court proceedings (5/6/2024)
• Statement on Federal Court order (24/4/2024)
• Statement on removal of extreme violent content (23/4/2024)

eSafety's relevant regulatory guidance:

• Online Content Scheme Regulatory Guidance

Court file number: QUD451/2023

Status: Currently before the Court

Issue: Alleged contravention of s 75 of the Online Safety Act 2021 (Cth) and alleged non-compliance with a notice and written direction issued under the Online Safety Act 2021 (Cth). 

Judgements to date: 

• eSafety Commissioner v Rotondo [2023] FCA 1296
• eSafety Commissioner v Rotondo (No 2) [2023] FCA 1351
• eSafety Commissioner v Rotondo (No 3) [2023] FCA 1590

For latest hearing updates, and to review any orders handed down by the Court and other relevant information, please visit the Commonwealth Courts Portal.

eSafety's relevant regulatory guidance:

• Image-based Abuse Scheme Regulatory Guidance