One of Australia’s most eminent constitutional law experts, Anne Twomey, has criticised the Albanese government’s “really problematic” misinformation bill over its attempt to categorise “opinions, commentary, claims and invective” as either ‘true’ or censorable ‘misinformation’ (Australian, The Conversation, Sky News).
A central piece of the government’s legislative agenda, the Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 has come under intense scrutiny from the opposition, legal experts, indigenous organisations, and free speech advocates – including our international sister group, the FSU of Australia – over concerns it may enable censorship.
Support for the proposed law is thin on the ground, with the Liberal-National Coalition – an alliance of centre-right to right-wing political parties – having already announced it would attempt to block the bill in the upper house of the federal Parliament.
Last month, Sky News Australia’s Political Editor, Andrew Clennell, said he suspected the bill might be “dead in the water” following significant pushback from crossbench Senators over its likely impact on online free expression.
Clennell’s claim was backed up by Liberal Senator Alex Antic, who has since cast doubt about the government’s ability to muster enough votes to get the Bill through the Senate, where it only has 25 of the 76 seats.
The aim of the bill is to force online platforms to censor ‘misinformation’ and ‘disinformation’ to the satisfaction of an unelected and opaque Government agency, the Australian Communications and Media Authority (ACMA).
To that end, the bill grants ACMA new powers to impose a compulsory code of practice on digital platforms, which requires them to enter into industry codes to address the spread of misinformation and disinformation. Failure to comply will result in hefty fines.
In “exceptional and urgent circumstances”, ACMA may also impose its own “standards” on the digital platforms. The bill says they can deal with “matters relating to the operation of digital communications platforms”, which could obviously mean anything that ACMA wants it to mean.
The current iteration of the draft law defines “misinformation” as content that is: “reasonably verifiable as false, misleading or deceptive” and “is likely to cause or contribute to serious harm”.
The same definition is used for “disinformation”, adding that there must be grounds to suspect that the content was shared with the intent to deceive others or otherwise “involves inauthentic behaviour”, whatever that means.
It’s true that the bill makes an exception for “content that would reasonably be regarded as parody or satire” and “reasonable dissemination of content for any academic, artistic, scientific or religious purpose”, as well as “professional news content”. But this merely raises more questions.
Who, officially, is a journalist? Is content produced by citizen journalists exempt? The answer is no, unfortunately.
When it comes to academic content, what counts as “reasonable”? Consider a case like Dr. Nathan Cofnas, the FSU member and early career research fellow at the University of Cambridge, whose college recently cut ties with him over a blog post about race and intelligence. In the world according to Australia’s draft misinformation bill, would his work receive legal protection as a “reasonable contribution” to scientific and academic discourse, or would it end up falling foul of the ACMA’s new online regulatory code?
And what about Hobart city councillor Louise Elliot, who earlier this year gave a speech at a women’s rights rally in which she said transwomen were and always will remain biological men? Would it be deemed reasonable for her to share a video of that speech for academic or scientific purposes? Given that she was subsequently hauled before the Tasmanian Anti-Discrimination Commission and accused with “inciting hatred”, that seems unlikely.
Then there’s the question of what counts as a sincerely held religious belief? Earlier this year, the Australian Christian Lobby warned that the legislation as drafted would inevitably “cancel Christian posts online” and prevent churches from “expressing an alternate view to the prevailing woke culture on gender and sexuality”.
Speaking to Sky News Australia, Prof Twomey urged the government to provide more clarity over how legislation would work in practice.
“There’s a lot of problems with it, but most of it comes down to definitions,” she said.
“At the moment, the bill effectively outsources the task of deciding what constitutes misinformation to the (social media) platform. So it’s the digital platforms are the ones that are responsible for deciding and they have to decide whether something is false, misleading or deceptive.
So how will social media platforms decide whether a piece of online content is ‘misinformation’ – i.e., “reasonably verifiable as false”? As the COVID-19 lab leak theory’s journey from “conspiracy theory” to “plausible hypothesis” reminds us, the difference between mis- (or dis-) information and legitimate news is often little more than the passage of time.
But as Prof Twomey points out, it’s even worse than this, since although the bill’s definition of misinformation confines itself to matters of empirical fact, the explanatory memoranda accompanying the legislation complicates the issue by suggesting “opinions and commentary and claims and invective” would also be covered.
“How do you determine that an opinion is true or false?”, she asked.
“How does Google or Meta or someone in the United States do that? I mean, it’s really problematic.”
According to Prof Twomey, the most likely outcome will be that social media platforms “get fact checkers in Australia to decide”, an approach which carried further risk.
“The fact checkers rely on experts,” she said.
“So then it depends on which experts you choose, because when it’s a contestable matter, not a clear matter of fact, two experts might tell the fact checker one thing and there might be another five who’d say something else, but maybe they didn’t bother answering their email that day and responding.
“So you could get distortions just simply on the basis of who you choose, who makes that kind of decision.”
Prof Twomey went on to suggest the legislation in its current form would enshrine a “problematic process” given its empowerment of social media companies to make “very fine decisions about freedom of speech”.
In a separate article for The Conversation, she also explained that if the result of fact-checking is that social media platforms add a note to a post stating it is contested, iving readers other information or references to more authoritative sources, that would at least “empower them to become better informed and make their own assessment”.
But if fact-checking leads to a contestable claim being declared ‘misinformation’, and posts containing that claim are then removed from digital platforms, that would be “far more concerning”.
At a Senate Hearing earlier this week, several other legal experts told Senators that, as it stands, the legislation had no explanation for how the government or ACMA would actually determine what constituted the truth, with Victorian Bar barrister James McComish describing the lack of detail as a “gaping hole at the heart of the bill”.
Reacting to the evidence given at Monday’s hearing, Nationals Senator Ross Cadell claimed the bill was “an incredibly poorly designed piece of legislation”.
He also dismissed Communications Minister Michelle Rowland’s previous claims the government had conducted extensive consultation before drafting the bill, asking: “Then how is it at this point of the day, not one witness who isn’t a government agency … says this bill should pass as it is?”
