Submission on the Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2023 Exposure Draft

By Martin Bennett Alex Tharby Demi Swain Monique Vincent

23 August 2023

Summary

As Bennett regularly acts for clients who are aggrieved by internet content, we are acutely aware of the harm and damage that can be caused by the spread of false and misleading information on the internet. The online spread of information of this kind is a growing problem and there is a need to do something about it.

The Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2023 (Bill) intends to provide greater protections against the spread of false and misleading information by giving the Australian Communications and Media Authority (ACMA) reserve powers to act if current industry efforts are inadequate. This includes imposing significant fines¹ on digital platform providers, compelling the production and gathering of information² and enforcing an industry code of practice.

However, the Bill in its current form does not adequately protect the freedom of political communications implied in our Constitution³ nor general freedom of expression which has been said to be the ‘ultimate constitutional foundation in Australia’.⁴

This submission, at a high level, contains Bennett’s key concerns regarding the Bill. These include:

(a) the definitions of ‘misinformation’ and ‘disinformation’ are too broad, effectively giving ACMA unfettered discretion to censor the internet;

(b) the exclusion of Government and mainstream media content from ACMA’s purview undermines the purpose of the Bill;

(c) the lack of available defences;

(d) the ability for ACMA to create and enforce an industry standard; and

(e) the power of ACMA to compel production of information.

Bennett does not support the Bill in its current form.

Definitions of, and the determination of what constitutes, ‘misinformation’ and ‘disinformation’

Definitions

‘Misinformation’ is defined very broadly. It is information that is “false, misleading or deceptive” and is “reasonably likely to cause or contribute to serious harm”.⁵ Disinformation is misinformation that is disseminated with the intention to deceive another person.

Whilst ACMA will not make determinations on individual publications or content, it supposes that misinformation is determinable and capable of being identified by ACMA (and the digital service providers who are required under the Bill to monitor the content published by their platforms). In effect, the Bill gives ACMA, a government body, the ability to determine what constitutes “misinformation”. Similarly, it also gives ACMA the power to determine unilaterally whether someone ‘intends to deceive another person’.

These definitions are the cornerstone to the entire statute and will inform the interpretation of every proposed provision. There is no clear distinction between what is deemed to be “information” and simply the opinion of a person.

The definition of serious harm is also extremely wide. It includes harm to the environment, harm to the economy or a section of the economy or “disruption of public order or society in Australia”.⁶ The Guidance Note provides examples of the types of “subject matters” which are likely to contribute to serious harm. The way in which the Bill is currently drafted leaves this up to interpretation by ACMA and are entirely vague which could lead to the curtailing of significant freedoms and rights.

A number of types of “serious harm” contained in the Bill are already captured by current laws. For example, hatred against an Australian society is captured by anti-discrimination and anti-vilification laws (which more appropriately balance the implied right to freedom of speech), and economic or financial harm to Australians is captured by Federal and State consumer protection legislation.

Determination of what is ‘misinformation’ or ‘disinformation’

The Bill makes ACMA the ultimate decision-maker. It supposes what can be misinformation or disinformation as a basis to invoke its powers.⁷ The Bill is silent on the ability for judicial review.

It is unclear how exactly ACMA will determine, and within what timeframe, whether content is truly misleading or false. For instance, many doctors had promoted ‘alternative’ treatments and preventative measures for COVID. Many were ultimately found to be valid, or proven, treatments.

Further, ACMA likely does not presently have adequate resources and develop sufficient expertise to appropriate determine what is ‘misinformation’ and ‘disinformation’. Some matters cover by the Bill, for example assessing whether a newly-developed medical treatment or a complex Ponzi scheme is financially damaging to Australians, will likely require specialist expertise.

In respect of causation, the Bill does not provide any guidance to ACMA to determine whether content is “reasonably likely to cause or contribute to serious harm”. There is no ordinary or reasonable consumer/person test to be applied (as there is under the Australian Consumer Law and the Defamation Act). This assessment, which involves the application of a new legal standard, will likely be made based on the subjective view of an ACMA employee who may not have legal training, let alone sufficient practical legal experience to make the assessment.

The Bill is also silent as to how ACMA is required to determine the intention element in differentiating between misinformation and disinformation. An allegation or wrongful finding that a person has intentionally made a false or misleading statement online could have significant consequences for that person and they are not necessarily afforded a prior right of reply. Moreover, where the purpose of the Bill is specifically not to combat individual content, it may be inappropriate for ACMA to make an assessment of a person’s intention for specific content.

Finally, the time likely to be involved in properly determining these matters (as is required) may mean that the horse has already bolted or, more alarmingly, digital platform providers may be pressured to censor content published on their platforms so as to avoid the significant fines that may be imposed.

The exclusion of Government content and ‘professional news content’

“Professional news content” is excluded from the remit of the Bill.⁸ The way in which this exclusion is drafted is such that if a mainstream media outlet prepares and publishes content online, it is excluded from the operation of the Bill. However, if someone is to comment on the content it can fall within the scope of the Bill.

This may stifle genuine and honest debate. It creates an unfair playing field that is simply not justified (particularly in light of the fact that a number of “professional news” outlets are Government funded and there is an express exclusion for any content made by the Government).

There is no legitimate policy rationale for excluding the Government and “professional” news outlets. Even the Government and the most highly regarded news outlets can (and have be found to) propagate false, misleading and defamatory information. In fact, it is those outlets that can cause the most serious harm given their significant audience reach and the apparent authority carried by information they publish.

It is concerning that if the current Government publishes anything on a digital platform it is deemed not to be misinformation.⁹ However, political parties or those commenting on political matters are not accorded the same carve out notwithstanding implied freedoms of political speech.

This could curtail fair and honest criticisms of the Government and shields the Government if it is to make misleading content.

The lack of available defences

The Bill lacks sufficient limits/defences to even out this proposed unfair playing field. For instance:

1. there is no “reasonable person” test to determine whether a person would be induced, and thereby likely to suffer “serious harm” due to misinformation or disinformation;
2. there is no “public interest” defence analogous to that in defamation law;
3. there is an attempt in including a defence similar to that of triviality in defamation law, for content that is “produced in good faith for the purpose of entertainment, parody or satire”. The line between “misinformation” and entertainment, parody or satire is entirely subjective and left in the hands of ACMA to determine; and
4. there is an exclusion for content produced by or for an accredited educational institution, but not for an individual academic commenting on subject matter within their area of expertise.

Moreover, there is no obligation on ACMA or the digital platform to contact a person before determining whether content is misinformation or whether a person disseminated misinformation with an intention to deceive. This denies natural justice to the person concerned.

The ability for ACMA to create and enforce an industry standard

The Bill will also empower ACMA to register an enforceable industry code with applicable penalties if current industry self-regulation methods are deemed (by ACMA) to be inadequate in combatting the spread of misinformation and disinformation.

Whilst it is said that public consultation by the industry body or association producing any code is a requirement prior to ACMA registering it,¹⁰ does this warrant ACMA having the proposed powers pursuant to the Bill?

It appears in this regard that there is no clear separation of powers. Clause 46 of the Bill proposes to provide ACMA with an alarming ambit of power to impose a standard simply when it is “convenient” to provide “adequate protection”.

The power of ACMA to compel production of information

ACMA’s proposed powers to compel production of information as against individual persons could face similar enforcement issues to that of plaintiffs in defamation proceedings seeking to uncover documents relevant to a defamatory publication. Namely, individuals hiding behind false names, different IP addresses and in different jurisdictions.
This adds to the likelihood that the Bill will not achieve its objectives.

Conclusion

There are some alternative means for protecting the public and consumers from false and misleading online information under the Australian Consumer Law, privacy laws, defamation laws and various torts laws. Government overreach, by putting undue restrictions on democratic freedoms, must be avoided.

Given the significant fines that could be imposed under the Bill there is a financial incentive for platforms to take steps to unduly ‘censor’ content published on their platforms even if they are made in good faith or are the expression of an honestly held opinion. The ability for Australian citizens to freely debate topics and ideas facilitates the exposure of issues and errors in governance and the administration of justice more broadly.

There is a recognised need to combat misinformation and disinformation, but giving ACMA additional powers to be judge, jury and executioner over internet content while exempting the Government and media outlets from the ambit of the proposed laws, is not the solution.

If the Bill is passed in its current form, it could curtail legitimate expression of ideas in Australia.

1. Penalties for violating the current code are up to $2.75 million dollars or 2% of global turnover – whichever is greater: Schedule 2 clause 17 (5G) and penalties for breaching any ACMA introduced standards are up to $6.8 million or 5% of global turnover: Schedule 2 clause 17 (5H)
2. Clause 18
3. Australian Capital Television v Commonwealth (1992) 177 CLR 106; Nationwide News v Wills (1992) 177 CLR 1
4. Wik Peoples v Queensland (1996) 187 CLR 1, 182
5. Clause 7(1)
6. Clauses 2, 7(3); Australian Government, Department of Infrastructure, Transport, Regional Development, Communications and the Arts, Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2023, Guidance Note, June 2023 https://www.infrastructure.gov.au/sites/default/files/documents/communications-legislation-amendment-combatting-misinformation-and-disinformation-bill-2023-guidance-note-june2023_2.pdf
7. See, for example, clause 14(1)
8. Clause 2
9. Clauses 2, 6 and 7
10. Australian Government, Department of Infrastructure, Transport, Regional Development, Communications and the Arts, Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2023, Fact Sheet, page 7

Disclaimer: The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.