When is a tweet just part of the social jousting digital world – and when is a tweet cyber-abuse?
Cyber-abuse, freedom of speech, and harm
Digital communications can cause people harm. Cyber-abuse laws try to stop some of this harm. A recent Australian case involving Canadian ‘Billboard Chris’ is about whether something he posted on line was cyber-abuse. A key question related to its likely intent to cause harm.
Any speech or published written material can cause harm. If we want to restrict such communications, should we look at whether they cause harm? What sort of harm? What sort of intention to cause harm is needed?
I have written about the e-Safety Commissioner before. The Commissioner’s powers under Federal legislation (ie Acts of Parliament) are an interesting issue in our digital world. How has our Parliament decided to balance concerns about ‘misinformation’ and ‘disinformation’ with the traditional western democratic model of ‘free speech’? They have done it by weaving in the concept of ‘intention to cause harm’ into a series of requirements which allow the curbing of ‘free’ speech.
Of course, Parliament might enact something which in their view keeps a certain balance. But how does the bureaucracy apply it? Do they keep within Parliament’s intended balance? Or do they take it in a different direction?
As always, I emphasise to those in government, whether I am giving advice or running a training course: stick to the powers given to you by parliament. Do not make up your own powers, or you will stray outside your jurisdiction.
The ‘Billboard Chris’ case
The key question in the ‘Billboard Chris’ case revolved around the phrase ‘intend to cause harm’. Without a certain kind of likely intent, there is no cyber-abuse under the Act.
A Federal Tribunal decided that ‘Billboard Chris’ did not intend to cause harm when he tweeted about the World Health Organisation (WHO) and a transgender person. (Actually, that’s a simplification. The question was whether Chris Elston was likely to have intended to cause serious harm1. In any case, the Tribunal found that he wasn’t.) The tweet was not cyber-abuse, because you wouldn’t conclude that its likely intention was to cause serious harm (I agree, this is a mouthful). The Tribunal is the ‘Administrative Review Tribunal’. They reviewed and overturned a decision by the e-Safety Commissioner. X Limited and Christopher Elston (aka ‘Billboard Chris’) were the applicants.
Billboard Chris has a website.
You can read the case in full here.
The tweet and the evidence – offensive or cyber-abuse?
Billboard Chris had reposted an article about a person who was on a WHO (World Health Organisation) Advisory Board. He added the following caption:
This woman (yes, she’s female) is part of a panel of 20 ‘experts’ hired by the @WHO to draft their policy on caring for ‘transpeople.’ People who belong in psychiatric wards are writing the guidelines for people who belong in psychiatric wards’.
The Tribunal summarises Billboard Chris’s evidence about the tweet as follows:
The reason I posted the Relevant Post is because I am concerned about the potential ramifications of having someone who had, according to the Daily Mail article, interest in bestiality, bondage, porn, queer theory, mutilation, and taxpayer-funded sex changes, being appointed to the World Health Organisation (WHO) to advise on the international policies and guidelines on trans healthcare. My understanding from reading the Daily Mail article is that Teddy Cook does not have any medical qualifications or certifications that would make Teddy Cook a qualified medical expert. She is just an activist.
It is my personal belief that people who have serious mental health issues, such as gender dysphoria, should not be responsible for drafting health care policy for other people struggling with serious mental health issues. I saw the Daily Mail article as an opportunity to spread awareness about who is responsible for making recommendations to the largest public health organisation in the world.
After seeing the Daily Mail article, I composed the Relevant Post to criticise Teddy Cook’s appointment to the WHO advisory board.
I did not post the Relevant Post with the intention to cause Teddy Cook any harm or embarrassment. I posted the Relevant Post to raise awareness about who the WHO was appointing to advise on the serious medical treatment of trans-identified individuals, who frequently have numerous mental health comorbidities. Gender dysphoria is a mental disorder currently listed in the DSM-V. Paraphilic disorders are also listed in the DSM-V, such as zoophilia, which Teddy Cook had promoted on her social media.
Psychiatric disorders and suicidality, which often accompany mental illnesses such as gender dysphoria, are often treated on psychiatric wards. My post was not saying that all people identifying as trans belong on a psychiatric ward. It was a criticism that people with psychiatric conditions are drafting policy for people with psychiatric conditions, because that is exactly what is happening.
My post was also a criticism of a political individual, Teddy Cook, who had just been assigned to a very important position at the World Health Organization. Public individuals in political positions are certainly open to critique.
But the Tribunal found:
Despite his evidence I am satisfied that an ordinary reasonable person would read the post as saying that transgender people, including Mr Cook, belong in a psychiatric ward.
The Tribunal found that the tweet was offensive to a variety of people. In fact, the Tribunal was ‘satisfied that an ordinary reasonable person in Mr Cook’s position would regard the material posted as offensive’. But more was needed: the tweet had to be cyber-abuse. And cyber-abuse requires a kind of likely intent.
Did the tweet violate X’s rules?
X decided that the post did not violate their rules.
Did the tweet involve a likely intent to cause harm?
On 22 March 2024 the Commissioner, through a delegate, issued a notice to X to remove the post. The notice relied on the Online Safety Act 2021. That basically meant that the delegate believed the post violated the law. Importantly, the delegate took the view that Christopher Elston was likely to have intended to cause serious harm to Teddy Cook. Apparently X was facing a $782,000 fine as a result.
Under the Act, several key elements must exist before the Commissioner can have statutory power to issue a removal notice.
The ‘intention element’ was key. To issue a cyber-abuse notice, likely intent must exist.
It is found in section 7 of the Act. That section defines ‘cyber-abuse targeted at an Australian adult’:
7(1) For the purposes of this Act, if material satisfies the following conditions:…. (b) an ordinary reasonable person would conclude that it is likely that the material was intended to have an effect of causing serious harm to a particular Australian adult… then… (e) the material is cyber-abuse material targeted at the Australian adult; and… (f) the Australian adult is the target of the material.
You might post something that is offensive to some people, but does that mean the Act allows removal of your post? Does that mean an ‘ordinary reasonable person‘ would believe that ‘it is likely’ that the material ‘was intended’ to have a ‘serious harm’ affect ‘to a particular Australian adult’?
The Tribunal found:
I am satisfied that an ordinary reasonable person would not conclude that that it is likely that the post was intended to have an effect of causing serious harm to Mr Cook… Consequently the Intention Element is not made out and the statutory preconditions for issuing a removal notice are not satisfied.
The Tribunal also made some comments about the purpose of the Act:
…it is important to keep in mind that in regulating cyber-abuse of an Australian adult, the Parliament was not seeking to control or regulate debate on controversial issues, nor to manage or set minimum standards of courtesy as to how such debates should be conducted. The provisions extended anti-bullying protections from children to Australian adults. They were designed to protect individuals from specific online attacks that can reasonably be understood as having the intention of causing serious harm to them in particular.
Cyber-abuse laws are not designed to stop controversial tweets
For any decision-maker making decisions under an Act, the words of that Act, and the intention of Parliament, are key. When Parliament creates a law to prevent ‘cyber-abuse’ online, free speech is impeded. Administrators need to keep a keen eye on the Act when administering such a law.
Having said that, it appears that this is complicated legislation. The Tribunal’s decision is 35 pages long. The discussion about the meaning of ‘intent’ is extensive. Such legislation can make it difficult for someone posting on social media to feel confident about when they are complying with the law, and when they are not.
- The Tribunal summarised the legal test regarding intention as follows:
‘It follows from this analysis, that when considering the Intention Element the decision maker must ask whether:
(a) an ordinary reasonable person, with access to all of the evidence that the decision maker has access to,
(b) would conclude that it is likely (in the sense of being more probable than not);
(c) that one of the effects that the poster intended to cause when providing the material on the social media service, included the effect of causing serious harm to a particular Australian adult including by inducing serious distress.’ (para 128) ↩︎