It’s been designed to combat misinformation and disinformation on digital platforms, but the Combatting Misinformation and Disinformation bill exposure draft has unleashed a flurry of controversy, and its fair share of misinformation.
So what are the facts around this legislation and will it end freedom of speech in Australia?
What is the bill?
The government is seeking to amend the Broadcasting Services Act 1992, by proposing to give the Australian Communications and Media Authority more powers over digital platforms when dealing with “content [that] is false, misleading or deceptive, and where the provision of that content on the service is reasonably likely to cause or contribute to serious harm”.
The communications minister, Michelle Rowland, said: “Acma will be given new information-gathering and record-keeping powers to create transparency around efforts by digital platforms to respond to misinformation and disinformation on their services, while balancing the right to freedom of expression so fundamental to democracy.”
Under the proposal, Acma would be given the powers to register an enforceable industry code if the platform’s self-regulation measures “prove insufficient in addressing the threat posed by misinformation and disinformation”.
Importantly, the bill does not give Acma any “take down” powers. It cannot order the removal of a post. Instead, if concerns are raised, it can ask the platform about its self-regulatory processes, and only if they are deemed insufficient can next steps be taken, including potential penalties and the enforcement of a mandatory code of conduct. The legislation sets out the next steps as graduated increases of power – Acma must give the platform every opportunity to respond to concerns before moving on to penalties.
How did we get here?
In 2017, the then treasurer, Scott Morrison, ordered the ACCC to conduct a review of digital platforms, with a focus on the “impact of digital platforms on the supply of news and journalistic content and the implications of this for media content creators, advertisers and consumers”. In its final report in 2019, the ACCC recommended a “digital platforms code to address the risk of deliberately misleading and harmful news” including “appropriate responses” to address disinformation and “mal-information”.
A voluntary code of conduct was drawn up by some of the major platforms in response and adopted by Google, Facebook, Microsoft, Twitter, TikTok, Redbubble, Apple and Adobe in 2021. Acma was given the job of keeping an eye on how the platforms upheld the code. That same year, the watchdog reported to the Morrison government its concerns over the rise of disinformation and misinformation online and recommended beefing up the code.
In March 2022, just before the federal election, the Morrison government responded to Acma’s report and promised to boost the regulator’s powers.
The Coalition went to the election vowing to give Acma “new regulatory powers to hold big tech companies to account for harmful content on their platforms”. That included providing Acma with “reserve powers to register and enforce industry codes or make industry standards”.
In June, after the election, Labor said it was looking at digital platforms. In January 2023, Rowland announced plans to do much of what the Coalition had planned in regards to beefing up the regulator’s powers.
An exposure draft of the proposed legislation was released in June 2023, which included many of the same elements the Coalition had taken to the election. By July, Sky News commentator Peta Credlin had declared it an “assault” on freedom of speech, which would establish a “ministry of truth”. Clare Chandler, a Liberal senator labelled it a “threat to democracy”. One Nation and other rightwing identities began to campaign against the legislation on the grounds it would “cancel” freedom of speech.
In August, the Australian Christian Lobby claimed the bill would lead to the cancellation of “Christian posts” and announced it would campaign against the legislation. Later that month, the shadow communications minister, David Coleman, said the bill should “be torn up” and would “suppress legitimate free speech in Australia”, despite the Coalition once promising the same legislation.
Is it only conservatives?
No. While there have been many responses to the consultation process after campaigns by One Nation and former Nationals MP George Christensen, there have also been concerns raised by the Human Rights Commission and the Australian Law Council.
Those concerns are largely centred around what they say are the broad definitions of disinformation and misinformation in the bill.
Content could be considered misinformation if it’s “false, misleading or deceptive” and the provision of the content “is reasonably likely to cause or contribute to serious harm”. Disinformation includes a similar definition but with the added clause of addressing whether the person [or foreign power] “disseminating, or causing the dissemination of, the content intends that the content deceive another person”.
There are exemptions, including if the content is considered entertainment, parody or satire, is from a professional news organisation, is produced for an educational institution or has been approved by commonwealth or state governments.
The Media, Entertainment and Arts Alliance also has concerns over the broadness of the definition of “serious harm”, with the exposure draft’s stating that for harm to be considered serious “it must have severe and wide reaching impacts on Australians”. The union also wants further clarity over who would be considered a “professional” journalist in terms of the exemptions, given that freelancers can work for themselves.
We don’t know what the final definitions of “misinformation” or “disinformation” will be.
The University of Technology Sydney submitted to the inquiry that it believed some of the concerns to be “overblown” but accepted there was legitimate concern about the enlarged role for Acma.
It proposed “limiting Acma’s information gathering powers to ‘measures implemented to prevent or respond’ to mis- and disinformation … thereby removing any possibility that Acma could indirectly influence decisions on which forms of content comprise mis- and disinformation”.
Is it the end of the world?
The exposure draft as it stands is unlikely to be the same bill that is introduced to parliament, with Rowland indicating she is serious about consultation.
The bill cannot force a social media platform or user to take down content – in Australia, only the e-Safety commissioner has those powers, thanks to legislation passed by the Coalition government in 2021.
Existing content moderation has not affected freedom of speech – Acma has noted that platforms like Facebook have removed thousands of posts under the existing voluntary code.
This bill creates a dialogue where, if an issue arises, Acma can converse with the platforms about meeting their own self-imposed code of conduct and, if necessary, recommend that voluntary code be strengthened with the threat of the government enforcing a code of conduct as an last resort.
Angela Flannery, the deputy chair of the Law Council’s media and communications law committee, said many critics of the bill failed to distinguish between “freedom of speech and the right to have voices amplified by platforms”.
The Coalition’s 2022 election platform included a promise to create “stronger laws to combat harmful disinformation and misinformation online by giving the media regulator stronger information-gathering and enforcement powers”. It now calls the legislation seeking to do that an “absolute disgrace”.
Coleman told Sky News the existing Online Safety Act could be used in some instances, but that only deals with bullying and harassment online, not misinformation.
What is next?
Rowland has said she plans on introducing legislation by the end of the year, but there is no suggestion it will be passed this year.
With the Coalition voting no, the government will need to negotiate with the Greens and crossbench in the Senate to have the bill passed. The Greens senator Sarah Hanson-Young has said she wants to see an even stronger bill that would include news organisations. Lower house independent MPs Zali Steggall and Zoe Daniel have also questioned the blanket exemption.
But no decisions will be made until the final legislation is tabled. The passage of the bill is not expected to be fast, giving plenty of time for further consultation.