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PaperclipPerfector  18hr ago (text post)   2912 thread views

Culture War Roundup for the week of April 6, 2026

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Now, some might say that just because an official government body invited some companies to have a friendly conversation about moderating their platforms, doesn't mean any pressure is actually being put on them, but the problem with that theory is that the companies themselves weren't under that impression.

One reason tech companies might form that impression is because regulatory bodies seem to be developing a habit of giving off that impression even when without exercising formal power. Recently, in eSafety Commissioner v Baumgarten, the Australian eSafety Commissioner had been revealed to be sending "informal requests" to X using X's legal requests portal, and then turning around and claiming to the Administrative Review Tribunal that the decisions were not reviewable because they weren't exercising formal powers granted to the Commissioner.

https://www.auspublaw.org/home/2026/3/the-government-is-not-the-same-as-us-esafety-commissioner-v-baumgarten-2026-fcafc-12-gwdak

The Baumgarten case reveals that the Commission has gone beyond its statutory mandate by working to limit online speech that it considers harmful or otherwise problematic, but that falls below the thresholds set in the statute. Ms Baumgarten posted a video on X which was critical of a Melbourne primary school teacher for organising a ‘Queer Club’ for students. The post named the teacher, but did not identify any children. The eSafety Commission received a complaint about the post. The complaint was considered by Samantha Caruana, an official within the eSafety Commission, who had no delegated authority to compel social media services to remove posts. Ms Caruana concluded that the post probably did not amount to ‘cyber-abuse material’ for the purposes of s 7 of the Online Safety Act. Despite her conclusion, Ms Caruana filled in a form on X’s ‘Legal Requests Portal’ asking that the post be taken down. The eSafety Commission’s request referred to s 7 of the Online Safety Act as authority for the request.

Ms Baumgarten sought review of the eSafety Commission’s ‘decision’ to order the removal of her post in the Administrative Appeals Tribunal (which was replaced by the Administrative Review Tribunal (ART) during the course of her case). Section 220 of the Online Safety Act provides for a right to seek merits review of the Commissioner’s decisions to issue removal notices. But the Commission argued that Ms Baumgarten had no right to challenge the decision in the Tribunal, because it had not made a removal decision under s 88. Rather, the Commission argued, it had simply made a request of X that it remove the post. Thus, the Commission argued, that there was no ‘decision’ for the Tribunal to review and it had no jurisdiction.

The Commissioner's argument was rejected by the ART and the appeal rejected by the Federal Court of Australia.

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