The Australian Government has introduced a Bill to Parliament on combatting seriously harmful misinformation and disinformaton on digital platforms, but stirring public debate on whether the proposed legislation could erode free speech.
The government said the Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 is focused on combatting the most seriously harmful content on digital platforms, and contains strengthened protections for freedom of speech.
The government explained their rationale for the Bill:
While digital platforms have brought significant benefits to Australians – allowing us to connect with family and friends around the world, they can also serve as a vehicle for the spread of misleading or false information that is seriously harmful to Australian’s health, safety, security and wellbeing.
According to the Australian Media Literacy Alliance, 80% of Australians say the spread of misinformation on social media needs to be addressed.
The Bill will:
- empower the Australian Communication and Media Authority (ACMA) to oversee digital platforms with new information gathering, record keeping, code registration and standard making powers;
- introduce new obligations on digital platforms to increase their transparency with Australian users about how they handle misinformation and disinformation on their services;
- will complement voluntary industry codes but allow ACMA to approve an enforceable industry code or make standards should industry self-regulation fail to address the threat posed by misinformation and disinformation.
The government has emphasised that nothing in the Bill enables ACMA themselves to take down individual pieces of content or user accounts,
Platforms are and will remain responsible for managing content on their services in line with their own terms of service.
However, the Bill and its previous version has attracted criticism and concerns from legal experts and human right organisations around its potential to undermine free speech. The Australian Human Rights Commission expressed these concerns in its submission to a previous draft of the Bill, which concerns still apply with regards to the latest draft,
The first issue is the overly broad and vague way key terms – such as misinformation, disinformation and harm – are defined. Laws targeting misinformation and disinformation require clear and precise definitions.
The second key problem is the low harm threshold established by the proposed law. Content that is “reasonably likely to cause or contribute to serious harm” risks being labelled as misinformation or disinformation.
The fourth concern relates to the powers to regulate digital content that are granted under the draft bill to digital platform providers and (indirectly) the ACMA…There are inherent dangers in allowing any one body…to determine what is and is not censored content. The risk here is that efforts to combat misinformation and disinformation could be used to legitimise attempts to restrict public debate and censor unpopular opinions.
As the Australian Human Rights Commission points out, it is challenging to strike the right balance between combating misinformation or disinformation and protecting freedom of expression. While the government’s proposal seeks to tackle the real and present threat posed by misinformation, the Bill’s effectiveness in tackling this objective while remaining consistent with core democratic values remains to be debated.
Steven Pettigrove – Partner, Piper Alderman
Jake Huang – Associate, Piper Alderman