Concerns Raised Over Proposed “Misinformation” Bill Turning Government into “Sole Arbiter of Truth”

Dec 13, 20233 min read

The Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill, sometimes referred to as the Misinformation Bill or Disinformation Bill, is a proposed and drafted amendment in the Australian Parliament intended to address online misinformation and disinformation by granting the Australian Communications and Media Authority (ACMA) greater powers.

A man holds an iPad reading a news story titled "FAKE NEWS" while sitting at a table with a cup of coffee. The text "The Misinformation Bill" is foregrounded.

In June 2021 the ACMA released a report which stated that disinformation and misinformation online presented an “increasing threat to Australians” and that it was difficult to measure the effectiveness of existing regulations around digital platforms.

The report then made a series of recommendations including the expansion of the ACMA’s authority to include “formal information-gathering powers (including powers to make record keeping rules) to oversee digital platforms, including the ability to request Australia-specific data on the effectiveness of measures to address disinformation and misinformation,” and “ reserve powers to register industry codes, enforce industry code compliance, and make standards relating to the activities of digital platforms’ corporations.”

As then-Minister for Communications, Urban Infrastructure, Cities and the Arts, Paul Fletcher released a statement in March of 2022 welcoming all five of the major recommendations of the report. However, the coalition government did not pass any laws regarding the recommendations due to losing the 2022 federal election.

WIth Labor coming to power, Michelle Rowland, the new communications minister, introduced the “Communications Legislation Amendment (Combatting Misinformation and Disinformation bill). Notably “Professional News Content” and “content Authorised by An Australian Federal, State, Territory or Local Government” has been excluded from the ACMA powers, both the Information Powers and Code and Standard Powers.

The Australian Human Rights Commission provided a submission on the proposed bill. The commission, while accepting “ the potential harms caused by misinformation

and disinformation, and the need for Australia to respond to these risks,” warned of the “real risk of different perspectives and opinions being targeted when doing so” and of “allowing any one body – be it government, a government taskforce, or a social media platform – to become the sole arbiter of ‘truth’.

Constitutional Law expert, Professor Anne Twomey, raised this same issue in her submission regarding the legislation:

“How can a digital platform provider be expected to make such assessments on

contentious matters in any objective and consistent way? If it makes a determination,

there is such room for different judgments that it is likely that one digital platform

provider will decide that something is misinformation because it is ‘reasonably likely to

cause or contribute to serious harm’, whereas three others might decide that it is not.”

The Law Council of Australia also provided a submission on the proposed legislation. This submission warned that while the ACMA itself may not have the power to remove content, freedom of expression may be effectively quashed as:“...digital platform services become overly careful in censoring content on their platform to limit their risk of receiving (potentially significant) fines or other penalties. It may also occur where platform users become overly cautious inorder to avoid penalties from the platform (for example, being labelled a purveyor of misinformation or disinformation, or having their account suspended).”

The Council also warned of the lack of “general recognition” within the drafted legislation regarding how “many topics of public interest involve genuine and legitimate factual disagreement, uncertainty or debate.” They concluded that the drafted bill is “very broad, uncertain, and may have serious unintended consequences.”

Prof. Twomey made similar sentiments in her submission conclusion, calling the draft Bill “at beast half-baked” and warned that is raises a “significant risk that the ‘cure’ is worse than the disease – i.e. that the damage to the democratic system of government and Australians generally arising from the restrictions on free speech on digital platforms may be greater than the damage caused by misinformation and disinformation.”