In September 2024, the Australian government introduced the Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 to regulate the spread of misinformation and disinformation on digital platforms.
The bill quickly passed its first and second readings in the House of Representatives and was referred to the Senate’s Environment and Communications Legislation Committee for further review, with a report due by November 25, 2024.
Submissions from the public were invited until September 30, signalling a push to expedite the legislation despite concerns over its impact on free speech.
This bill has sparked debate, particularly over the exemptions granted to government entities, raising fears of double standards and potential overreach.
As the bill progresses, questions remain about whether it truly strikes the right balance between combating harmful misinformation and preserving free speech in a democratic society. In this article, we explore the implications of the bill, the risks it poses to public discourse, and why accountability must apply to all, including the government itself.
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Understanding the Bill
The Communications Legislation Amendment (Combating Misinformation and Disinformation) Bill 2024 is a recent legislative proposal introduced to regulate how misinformation and disinformation are handled on digital platforms in Australia. The primary goal of the bill is to reduce the spread of harmful content that could mislead the public and cause significant damage to individuals or society.
It particularly targets content disseminated through online platforms, including social media, search engines, and media-sharing services.
Key Provisions of the Bill
- Digital Platform Accountability: The bill imposes strict responsibilities on digital communications platforms (such as social media and content-sharing sites) to manage and mitigate the risk of misinformation and disinformation. These platforms must publish detailed risk assessments on how their services may contribute to the spread of false information.
- Misinformation and Disinformation Defined:
- Misinformation is defined as content that is reasonably verifiable as false, misleading, or deceptive and is likely to cause serious harm.
- Disinformation involves intentional deception with content that misleads or involves inauthentic behaviour, such as automated systems or coordinated efforts to spread false information.
- Role of the ACMA (Australian Communications and Media Authority): ACMA is given broad powers to oversee and enforce the provisions of the bill. It can create digital platform rules, approve industry codes, and even issue civil penalties to platforms that fail to comply. ACMA will also have the power to demand reports from digital platforms on their risk management practices.
- Transparency and Accountability: The bill mandates that platforms publicly disclose how they are combating misinformation and disinformation. This includes risk management strategies, media literacy plans, and complaint handling processes. This transparency is designed to allow the public to understand how platforms are addressing these issues.
Objectives of the Bill
The bill outlines six key objectives, focusing on increasing transparency, enabling end-users to better evaluate the credibility of online content, and ensuring platforms implement strategies to combat harmful misinformation. Additionally, ACMA will be responsible for examining systemic issues and ensuring platforms adhere to the rules through penalties and sanctions.
While these provisions are framed as protecting the Australian public from harmful content, they also raise critical concerns about free speech, the role of government oversight, and the potential for government exemptions that could undermine the integrity of the law.
The Importance of Free Speech
Free speech is one of the cornerstones of any functioning democracy, and Australia is no exception. While Australia does not have an explicit, constitutionally enshrined right to free speech like the First Amendment in the United States, it has developed legal principles through case law that emphasise freedom of political communication as a key democratic right. This is important because
free speech enables public debate, allowing individuals to express opinions, share information, and critique policies,
which is fundamental to the democratic process.
Legal Foundations of Free Speech in Australia
Although there is no single, written right to free speech in Australian law, the High Court of Australia has recognised an implied right to political communication under the Constitution. This right is not absolute but is crucial in ensuring that Australian citizens can discuss and critique government policies, electoral processes, and political candidates. This right to political communication is tied closely to elections and the ability of the public to make informed decisions.
The Communications Legislation Amendment (Combating Misinformation and Disinformation) Bill 2024 introduces a potential conflict here. While its intent is to curb the spread of false or harmful information, it could inadvertently infringe upon this implied right to political communication.
The line between what constitutes harmful misinformation and legitimate critique of government policies may become blurred, particularly when government officials and agencies are exempt from scrutiny under the same law.
Free Speech as a Foundation for Public Debate
Free speech plays an essential role in maintaining public accountability. Without the freedom to express dissenting views, critique government decisions, or share controversial ideas, public debate would be stifled, and governments could operate without the fear of being held accountable by their constituents. When free speech is diminished, public trust in government and institutions can erode, and the risk of authoritarianism increases.
This is particularly important in the digital age, where online platforms provide a forum for individuals to express a wide range of opinions.
While misinformation is a genuine concern, the open exchange of ideas — even those that may be controversial or unpopular — is fundamental to a vibrant democracy.
The Role of Online Platforms
Online platforms such as social media networks, blogs, and content-sharing websites have become the primary means through which people communicate and share information today. These platforms enable the exchange of ideas at a scale that was previously unimaginable. However, with this comes the challenge of managing false information, whether intentional or not.
While the Bill seeks to regulate this space, it's important to recognise that not all false information is harmful, nor should it all be regulated. For example, people often hold incorrect opinions on a range of topics, and part of the public debate process involves correcting and refining those views through discussion. Free speech allows this exchange to happen naturally, without the need for top-down regulation that could stifle legitimate expression.
Government Exemptions from the Bill
One of the most contentious aspects of the Bill is the government’s own exemption from its provisions.
While the bill enforces strict regulations on digital platforms, it includes specific protections for government entities and political actors, allowing them to potentially avoid the scrutiny imposed on private citizens, media outlets, and other organisations.
The Issue of Parliamentary Privilege
Parliamentary privilege is a long-standing principle in many democratic systems, including Australia. It grants members of parliament (MPs) immunity from prosecution or civil liability for statements made in the course of parliamentary proceedings. The idea behind this privilege is to protect MPs from legal consequences when they speak freely in parliament, ensuring robust debate and discussion without fear of defamation suits or criminal charges.
While this principle serves an important function, it raises significant concerns in the context of the misinformation bill. If government officials and MPs are exempt from being held accountable for spreading misinformation or disinformation, it creates an imbalanced system where politicians may operate under different rules than the public. This opens the door to potential misuse, as officials could spread false information without consequence, undermining the very purpose of the legislation.
Exemptions in Practice
The bill provides explicit exemptions for certain forms of content disseminated by the government, including official statements, public health messages, and political advertising.
While the intent behind these exemptions may be to protect government communications from being overly regulated, they raise critical questions:
- Why should the government be allowed to spread misinformation without accountability? If the purpose of the bill is to protect the public from false and harmful information, then the government itself must be held to the same standards as private individuals and organisations.
- What prevents political actors from using this exemption to mislead the public during elections or political campaigns? The exemption may allow political parties to engage in manipulative tactics, such as disseminating disinformation through political ads, without facing repercussions under the law.
The Double Standard
The exemption granted to government entities creates a double standard in how misinformation is handled. On one side, private individuals and companies are subject to heavy regulation and potential penalties for sharing false information. On the other side,
government actors can operate with relative impunity, using their parliamentary privilege and legal exemptions to avoid consequences.
This discrepancy undermines the integrity of the law. If the government truly wants to combat misinformation, it must lead by example and hold itself accountable to the same rules that apply to everyone else. Without this accountability, public trust in government institutions may erode, and the effectiveness of the legislation in curbing misinformation will be severely weakened.
Lack of Transparency
The issue of government exemption is further compounded by the lack of transparency in how political communications are managed. While the bill requires digital platforms to be transparent in their risk assessments and handling of misinformation, it does not impose similar requirements on government communications. This lack of transparency is particularly concerning in times of national crisis or election periods, where government messaging plays a critical role in shaping public perception.
In a healthy democracy, both the public and the government should be subject to checks and balances.
When one side is granted immunity, it creates an imbalance that threatens the fairness and integrity of public discourse.
The Slippery Slope of Regulating Speech
The core objective of the Bill is to protect the public from harmful misinformation and disinformation. However, this goal comes with the risk of overreach. History shows that once governments start regulating speech, it can lead to a slippery slope where freedom of expression is gradually eroded, often under the guise of public safety or social harmony.
Regulating Content: Who Decides What Is "Misinformation"?
One of the main challenges with any law aimed at regulating misinformation is the question:
Who decides what constitutes misinformation?
While some cases are clear-cut, such as factually inaccurate medical advice or false news about natural disasters, many issues are not as black and white. Opinions on political, social, and economic matters often vary, and labelling dissenting views as "misinformation" could become a powerful tool to suppress legitimate debate.
For example, disagreements over policy responses to climate change, immigration, or pandemic management might lead to certain viewpoints being censored under the pretence of fighting disinformation. This raises serious concerns about government overreach, especially when those in power can determine which information is acceptable and which isn’t.
Historical Examples of Abuse
History is filled with examples of governments using laws meant to control harmful speech to instead silence critics or political opponents. In countries like China and Russia, strict misinformation laws have been used to quash dissent and stifle political opposition under the justification of maintaining public order.
Even in democracies like the United States and the UK, there have been instances where laws aimed at controlling speech, such as sedition acts or wartime censorship laws, were used to silence dissent. These examples highlight the dangers of handing over the power to regulate speech to government entities, even with the best intentions.
Stifling Debate and Innovation
Another concern is that regulating speech too tightly could stifle debate and innovation.
Progress in society often comes from questioning the status quo and presenting alternative views, some of which may initially be unpopular or controversial.
If laws like the Misinformation and Disinformation Bill are too stringent, they could inhibit the open exchange of ideas that is crucial for societal progress.
The ability to challenge official narratives and policies is essential for democratic health, and overly aggressive regulation risks shutting down those important debates.
A Chilling Effect on Free Speech
Another potential consequence of the bill is what is known as the “chilling effect.” Even if the law is not directly used to censor dissent, its existence may cause people to self-censor out of fear that their opinions might be labelled as misinformation. When people feel they cannot speak freely without facing consequences, the marketplace of ideas is weakened, and democratic dialogue suffers.
Journalists, academics, and everyday citizens might hesitate to share their views on controversial topics if they believe their content could be flagged or removed. This self-censorship not only limits public debate but also diminishes the diversity of voices and perspectives in society, which are critical to fostering understanding and problem-solving.
Counter productive Consequences
While the intent of the bill is to reduce harm, overly restrictive regulations may have the opposite effect. Suppressing information, especially on digital platforms, often drives it underground, where it can fester and grow unchecked.
Instead of engaging in open debate where falsehoods can be corrected with facts, misinformation may simply move to less visible platforms where it cannot be easily countered.
Moreover, labelling certain content as “misinformation” can give it a certain allure, especially among communities that are already distrustful of government.
By censoring content, the government risks increasing the spread of conspiracy theories, as people may interpret censorship as evidence of a hidden agenda.
Counterarguments and Responses
While there are valid concerns about the potential overreach of the Bill, there are also strong counterarguments in favour of the bill.
In this section we will discuss some of the key counterarguments, along with responses that highlight the importance of maintaining free speech and ensuring government accountability.
Counterpoint 1: The Bill is Necessary to Protect Citizens from Harmful Misinformation
One of the primary arguments in favour of the bill is that it is essential to protect the public from the real harm caused by misinformation. False information, particularly in areas like public health, elections, and national security, can have far-reaching consequences. For example, during the COVID-19 pandemic, the spread of misinformation about vaccines and treatments resulted in confusion, reduced public trust in health systems, and even death.
Response: While protecting public health and safety is undoubtedly important, it must be balanced against the right to free speech. Legislation that restricts speech should be carefully crafted to avoid overreach, ensuring that it only targets clear, verifiable falsehoods that directly harm individuals or public order. Open dialogue allows for the correction of false information, and overly broad laws may suppress legitimate debate rather than addressing harmful misinformation.
Counterpoint 2: The Bill Increases Transparency and Encourages Fact-Checking
Proponents argue that the bill promotes transparency by requiring digital platforms to publish risk assessments, media literacy plans, and methods for managing misinformation. In addition, it encourages fact-checking and helps the public better understand the credibility of the information they consume.
Response: While transparency and fact-checking are beneficial, the concern lies in who gets to decide what is considered “fact” and what is “misinformation.” Government control over these definitions can lead to selective enforcement and potential censorship.
It is essential that fact-checking is done by independent bodies, not by government entities
that may have a vested interest in controlling public narratives.
Moreover, the bill’s exemptions for government and political communications undermine its stated goal of transparency. If the government is not subject to the same scrutiny as private entities, it creates a double standard that could erode public trust rather than enhance it.
Counterpoint 3: Digital Platforms Need Regulation to Prevent the Spread of Harmful Information
Digital platforms, especially social media, have been criticised for allowing misinformation to spread unchecked. The bill’s supporters argue that these platforms have a responsibility to regulate content to prevent harm and that government intervention is necessary to hold them accountable.
Response: Regulation of digital platforms is important, but it must be consistent and transparent. If the government mandates regulation without being held to the same standard, it risks appearing hypocritical and undermining its own legitimacy. The public may view such regulation as a tool for suppressing dissent rather than a genuine effort to improve online discourse.
Moreover, heavy-handed regulation can push harmful information into less visible spaces, where it becomes harder to track and address. A more effective solution might involve working with platforms to develop clearer, more targeted policies for misinformation while ensuring that the government itself is not exempt from scrutiny.
Counterpoint 4: The Bill Only Targets Harmful and Misleading Information
Supporters of the bill argue that it is designed to target harmful and misleading content, not legitimate free speech. They point to the bill’s definitions of misinformation and disinformation, which focus on content that is “reasonably verifiable as false” and likely to cause serious harm.
Response:
The challenge lies in determining what qualifies as “reasonably verifiable” and what constitutes “serious harm.”
These definitions are subjective and can vary depending on who is interpreting the law. For example, political speech that is critical of government policies might be deemed harmful by those in power, even if it represents legitimate dissent.
To avoid such ambiguity, the bill should include clearer guidelines on what constitutes harmful misinformation, and independent bodies should be involved in its enforcement to prevent government overreach. It is also essential to protect the right to challenge prevailing narratives, as this is a key component of free speech and democratic debate.
Counterpoint 5: The Bill Encourages Media Literacy and Critical Thinking
One of the bill’s aims is to increase media literacy by requiring digital platforms to develop media literacy plans. This is intended to help end-users better identify misinformation and make informed decisions about the content they consume.
Response: Media literacy is absolutely important in combating misinformation, but it should be approached from a bottom-up perspective rather than a top-down, government-imposed mandate. Encouraging individuals to critically assess information through education and public awareness campaigns can empower citizens without infringing on free speech.
The bill’s focus on platform-imposed media literacy plans may shift too much power to the platforms themselves, risking bias in how information is presented and categorised.
What Could Be Done Instead?
While the Bill aims to deal with misinformation, there are other ways to reach this goal without risking free speech. Instead of relying on government rules that might lead to overreach, here are some ideas that could work better.
Strengthening Media Literacy
One of the best ways to fight false information is through education. By helping people learn how to tell the difference between true and false content, we empower them to make informed choices. Schools, universities, and even community programs can play a key role in teaching media literacy. This bottom-up approach allows citizens to question what they see online rather than rely on the government to tell them what’s true.
Encouraging Independent Fact-Checking
Rather than giving the government full control over what is or isn't true, we can build trust in independent fact-checkers. These are groups that look at news, reports, and claims to verify if they are true. Independent fact-checkers should be separate from the government to avoid any conflicts of interest. This allows for a balanced and neutral check on the spread of information.
Building Public Awareness
Another way to help the public handle misinformation is to raise awareness about it. Campaigns run by non-government groups can inform people about the risks of misinformation and how to spot it. These campaigns can be led by trusted community leaders, organisations, and even social media influencers to reach a wider audience. This way, people are aware of the risks but not afraid to express their views.
Working with Platforms, Not Against Them
Digital platforms like social media sites are already taking steps to deal with false information.
Instead of making heavy rules that force platforms into action, the government could work with these companies.
Platforms can be encouraged to develop clearer ways to deal with harmful content while still allowing room for debate and free speech. Collaboration between government, platforms, and the public would create a system that is fair and transparent.
Holding the Government to the Same Standards
One key change that could make the bill more acceptable is ensuring that the government is held to the same standards as everyone else.
If politicians and government bodies are not exempt from the rules, it would help to restore public trust. The government should lead by example and be accountable for any misinformation it spreads, just like private individuals or companies.
What can you do if you don't agree with this bill?
If you oppose the Bill, there are several steps you can take to voice your concerns and participate in the democratic process:
1. Make a Submission to the Senate Inquiry
The bill has been referred to the Senate Environment and Communications Legislation Committee for review, with public submissions open until September 30, 2024. This is an opportunity for individuals and organisations to submit their concerns or recommendations directly to the parliamentary body overseeing the bill. Submissions can highlight the potential impact on free speech and propose alternative solutions.
Action: Visit the Australian Parliament website to learn how to submit your opinion to the inquiry.
Here is the submission that I made to the enquiry
2. Contact Your Local Member of Parliament (MP)
One of the most direct ways to oppose the bill is by contacting your local MP. MPs represent their constituents in Parliament, and your voice could influence how they vote on the bill.
Be sure to clearly articulate your concerns about free speech, the lack of accountability for the government under the bill, and potential overreach in regulating digital platforms.
Action: Write letters, emails, or call your MP to express your opposition. You can also attend local MP meetings or events to voice your concerns in person.
3. Engage in Public Debate
Engaging in public discussions, both online and offline, is a key way to raise awareness of the bill’s potential issues. You can participate in forums, community discussions, and social media to educate others about the bill and its possible consequences for free speech.
Action: Share information through social media platforms, join debates in public forums, or write blog posts and articles to raise awareness about the bill’s potential risks.
4. Support Advocacy Groups
There are several civil liberties and free speech advocacy groups that actively campaign against legislation they believe infringes on fundamental rights. These organisations often run public campaigns, organise protests, and engage with the media to influence public opinion and parliamentary decisions.
Action: Support organisations like the Australian Civil Liberties Union or similar advocacy groups. You can volunteer, donate, or participate in their campaigns to oppose the bill.
5. Attend Protests or Public Rallies
Organised protests and rallies can be an effective way to demonstrate collective opposition to the bill. Participating in or organising peaceful protests can help bring media attention to the cause and influence the political process.
Action: Look for public demonstrations against the bill in your area or organise one in collaboration with local advocacy groups.
6. Use Media to Raise Awareness
Writing letters to the editor, contributing op-eds to newspapers, or appearing in media interviews are effective ways to get your message across. The more public exposure the issue gets, the more pressure Parliament will face to consider alternative perspectives on the bill.
Action: Submit opinion pieces to major Australian newspapers or participate in radio, TV, or podcast interviews to spread your message.
7. Sign or Start a Petition
Online petitions can help gather public support and show Parliament that many citizens oppose the bill. Some platforms allow you to start or sign petitions that can be presented to lawmakers.
Action: Sign existing petitions on platforms like Change.org or consider starting your own petition to oppose the bill.
By taking these steps, you can actively participate in the democratic process and make your opposition to the Misinformation and Disinformation Bill 2024 heard.
Conclusion
The Communications Legislation Amendment (Combating Misinformation and Disinformation) Bill 2024 raises important questions about the balance between free speech and protecting the public from harmful misinformation.
While the bill’s has good intentions, it risks overreaching by giving the government too much power to regulate speech, particularly with its own exemptions from the law.
Free speech is a fundamental pillar of democracy, allowing individuals to express their views, question government actions, and engage in healthy debate. Instead of stifling speech, we should focus on empowering citizens through education, supporting independent fact-checking, and holding all parties, including the government, accountable.
As we all face increasing challenges in the digital age, it is of utmost importance to strike the right balance between regulation and free expression.
👉️ The public must remain vigilant to ensure that laws intended to protect do not become tools of censorship.
FAQ
- What is the Communications Legislation Amendment (Combating Misinformation and Disinformation) Bill 2024?
- This is a new bill introduced in Australia aimed at regulating digital platforms to control the spread of misinformation and disinformation. It gives the Australian Communications and Media Authority (ACMA) the power to enforce rules and penalise platforms that do not comply.
- What are the main concerns with the bill?
- The main concerns are that the bill could infringe on free speech by allowing the government to control what information is shared. Additionally, the government and political entities are exempt from the bill, raising concerns about transparency and accountability.
- How does the bill define misinformation and disinformation?
- Misinformation refers to false or misleading content that can cause harm, while disinformation involves intentional falsehoods, often spread with deceptive intent.
- Why is the government exempt from the bill’s provisions?
- The bill exempts certain government communications, including parliamentary statements and political advertising, under the rationale of protecting the freedom of political communication. However, this creates a double standard where the government is not held to the same rules as private citizens or companies.
- How can the bill impact free speech?
- The bill could lead to the suppression of certain opinions or critical viewpoints, especially if they are labelled as misinformation. It risks creating a chilling effect, where people self-censor out of fear of their content being flagged or removed.
- Are there alternatives to this bill that protect free speech?
- Yes, alternatives include strengthening media literacy, encouraging independent fact-checking, building public awareness campaigns, and working collaboratively with digital platforms to create fair policies. Importantly, the government should be held to the same standards as everyone else.
- Who oversees the enforcement of the bill?
- The Australian Communications and Media Authority (ACMA) is tasked with enforcing the bill’s provisions. It will have the authority to create rules, approve industry codes, and issue penalties to digital platforms that do not comply.
- What is parliamentary privilege, and why does it matter in this context?
- Parliamentary privilege allows MPs to speak freely in Parliament without fear of legal consequences. In the context of the bill, this privilege creates a loophole where politicians may not be held accountable for spreading misinformation.
- What could happen if the bill is abused?
- If the bill is abused, it could lead to censorship of dissenting opinions and political opposition. Government control over what is classified as misinformation could be used to suppress criticism and limit public debate.
- How can the public get involved?
- The public can engage by staying informed, participating in discussions around the bill, and advocating for balanced solutions that protect both free speech and the public from harmful misinformation.
Further Reading
Anthony Painter
Member discussion