The activist, Elon Musk and Trump's free speech gripe with Australia
Cook complained to Australia's eSafety Commissioner, Julie Inman Grant, and on March 22 last year, a delegate ordered X to remove the post. A letter from the delegate to X said the post deliberately misgendered Cook, invalidated and mocked his gender identity, was offensive and constituted cyberabuse. If X failed to remove the post, it was liable for a $782,500 fine.
The platform complied by geo-blocking the post in Australia, although it is still available elsewhere, including in the United States. Musk's company also appealed to the Administrative Review Tribunal, as did Elston, leading to the hearing that was held in March.
Why does it matter?
The tribunal's deputy president, Damien O'Donovan, reserved his decision, so the outcome is not yet known. In the interim, however, the case has been picked up by a number of right-wing or libertarian news outlets, and is now commanding the attention of Donald Trump and Marco Rubio's State Department.
'The Department of State is deeply concerned about efforts by governments to coerce American tech companies into targeting individuals for censorship. Freedom of expression must be protected – online and offline,' the department's Bureau of Democracy, Human Rights and Labor posted on X earlier this month.
'Examples of this conduct are troublingly numerous. EU Commissioner Thierry Breton threatened X for hosting political speech; Türkiye fined Meta for refusing to restrict content about protests; and Australia required X to remove a post criticising an individual for promoting gender ideology.
'Even when content may be objectionable, censorship undermines democracy, suppresses political opponents, and degrades public safety. The United States opposes efforts to undermine freedom of expression.'
It is not the only time Australia's eSafety Commissioner has irked X. Only a few weeks after demanding the removal of Elston's post, her office issued a take-down notice for the footage of Wakeley bishop Mar Mari Emmanuel being stabbed at his western Sydney church.
In that case, X hid the posts in Australia, but the commissioner's office then sought their worldwide removal, which X refused to do. Musk called Inman Grant a 'censorship commissar' who was demanding 'global content bans'. Another court challenge commenced, though the commissioner later dropped the proceedings.
Streisand effect
Cook declined to comment for this story, as did LGBTQ advocacy group Equality Australia. A spokesperson for the eSafety commissioner declined to answer specific questions, but said the agency would continue to take 'principled, balanced and fair regulatory actions to protect Australians' and 'continue holding technology companies to account for online harms in accordance with Australia's laws'.
From his home in Vancouver, Elston said he had entirely forgotten about his post regarding Cook when X forwarded him the removal notice weeks later. He immediately knew it had the potential for scandal.
'I thought: my gosh, they're trying to censor me, all this is going to do is cause a huge kerfuffle,' Elston says. 'It's pretty wild that a Canadian posting on an American-run platform gets censored by an Australian government bureaucrat just arbitrarily.'
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Elston's case was picked up and funded by Alliance Defending Freedom International, and in Australia by the Human Rights Law Alliance, which was set up in 2016 by the Australian Christian Lobby.
Elston rejects the eSafety commissioner's charge that he misgendered and abused Cook, arguing: 'I'm just not going to play along with the lie that women can be men and men can be women.'
As for the State Department's intervention, he says: 'They're definitely on my side. I know the entire Trump administration is basically in lockstep with me on this issue.'
Trade implications
The administration is seeking to enforce its views about free speech near and far. In a speech in February, Vice President J. D. Vance criticised European allies for backsliding on free speech, while London masthead The Telegraph has reported concerns that free expression could affect trade talks.
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'No free trade without free speech,' it quoted a source familiar with US-UK trade negotiations saying.
In Australia's case, trade negotiators have already raised concerns about government efforts to force American technology companies to pay for local news generation, while the federal government's planned social media ban for children under 16 has also angered Meta (owner of Instagram and Facebook) and X.
David Inserra, the Cato Institute's fellow for free expression and technology, says the Trump administration has clearly signalled its grievances about these kinds of policies. It is also willing to label policies it does not like as 'taxes', which invites a tariff or trade response.
'The eSafety Commission has a bit of a history here,' Inserra warns. 'The Trump administration views this as continued overreach in this regard.'
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