Confronting Digital Misinformation

The rapid proliferation of harmful misinformation and disinformation on digital communication platforms has become a significant challenge for every country, including Australia. Modern democratic countries depend upon the free flow of accurate information to fuel public debate, that information's integrity, diversity, and reliability are fundamental to our way of life. The Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 seeks to confront this pressing issue head-on.

Misinformation and disinformation are not merely abstract concerns; they have tangible, detrimental effects on various aspects of society. They can undermine electoral processes, jeopardise public health, lead to the vilification of groups, cause physical injury to individuals, damage critical infrastructure or emergency services, and inflict significant economic harm. These harms highlight the urgent need for effective measures to combat the spread of false and misleading information online.

Like any problem with misinformation, there has been a lot of deliberate obfuscation about this legislation, what problem it is addressing, and how it will operate. In this paper, I want to offer a non-political interpretation of this legislation and what it might mean for us.

A core problem identified is a market failure where digital communication platform providers and the creators of misinformation need to consider the social costs of their actions fully. As a result, society bears the brunt of these negative impacts. The current voluntary efforts by industry players in Australia, while a positive start, need to be revised. There needs to be more consistent reporting, transparency, and Australian-specific data, which hampers regulators' ability to assess these measures' effectiveness.

Moreover, the existing voluntary code is limited in its efficacy due to its non-mandatory nature and not all digital communication platforms are signatories. This inconsistency allows harmful content to continue spreading unchecked across various platforms, undermining the overall goal of reducing misinformation and disinformation.

The bill aims to address these shortcomings by introducing more robust regulatory mechanisms. By doing so, it seeks to ensure that digital platforms take greater responsibility for the content they host and that there is a consistent, enforceable standard across the industry. This legislative approach is crucial for safeguarding Australia's democratic processes, protecting public health and safety, and maintaining social cohesion in the face of the challenges posed by the digital age.

In essence, the Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 is seen by its promoters as a necessary response to a complex problem that affects all Australians. It underscores the importance of reliable information in our democracy and the need for decisive action to prevent the spread of harmful falsehoods that can have severe consequences for individuals and society.

The Australian Government has introduced the Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 to address growing concerns about the spread of false and misleading information online. This report provides an overview of the key provisions and implications of the proposed legislation.

Key Provisions:

1. New Powers for the ACMA

The bill would grant significant new powers to the Australian Communications and Media Authority (ACMA) to regulate digital platforms regarding misinformation and disinformation, including:

• Information gathering powers to obtain data from platforms (Schedule 9, clauses 33-34)
• Ability to approve industry codes of practice (Schedule 9, clauses 47-53)
• Power to determine industry standards if codes are inadequate (Schedule 9, clauses 54-63)
• Authority to issue remedial directions and civil penalties for non-compliance (Schedule 9, clauses 72-75)

2. Obligations for Digital Platforms

The legislation would impose new obligations on digital platform providers, including:

• Publishing policies on misinformation/disinformation (Schedule 9, clause 17(1)(b))
• Conducting risk assessments (Schedule 9, clause 17(1)(a))
• Developing media literacy plans (Schedule 9, clause 17(1)(c))
• Complying with ACMA-approved codes and standards (Schedule 9, clauses 52 and 62)

3. Definitions and Scope

The bill provides definitions for key terms:

• "Misinformation" is defined as false, misleading or deceptive content likely to cause serious harm (Schedule 9, clause 13(1))
• "Disinformation" has the additional element of intent to deceive or inauthentic behaviour (Schedule 9, clause 13(2))
• "Serious harm" is defined to include electoral integrity, public health, defamation of groups, physical injury, critical infrastructure, and economic harm (Schedule 9, clause 14)

4. Safeguards and Limitations

The legislation includes some safeguards, such as:

• Exemptions for professional news content, satire, and academic/scientific content (Schedule 9, clause 16)
• Limitations on regulating private messages (Schedule 9, clauses 45-46)
• Prohibition on requiring platforms to remove content in most cases (Schedule 9, clause 67)

5. Proposed Amendments

Some proposed amendments to the bill include:

• Requiring ACMA to publish information provided by platforms (proposed amendment 1)
• Mandating platforms provide research data access to qualified researchers (proposed amendments 2-6)

Implications:

This legislation would significantly expand the regulation of digital platforms in Australia regarding misinformation and disinformation. While aiming to address genuine harms, the broad scope and definitions may raise concerns about impacts on freedom of expression. The co-regulatory approach of industry codes backed by ACMA powers provides some flexibility but also grants substantial authority to the regulator.

Critical issues for consideration include:

• Potential chilling effects on online speech given civil penalties for non-compliance
• Challenges in consistently defining and identifying "misinformation" and "disinformation."
• Impacts on smaller platforms that may struggle with compliance costs
• Privacy implications of expanded data collection and sharing
• Effectiveness in addressing cross-border information flows

Scope and Cut Outs:

The proposed Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 primarily targets digital communications platforms, such as social media platforms, search engines, and content-sharing services. It specifically focuses on regulating misinformation and disinformation circulating online, addressing the risks and societal harms posed by such content on these platforms.

However, the bill does not apply to professional news outlets like newspapers or television broadcasters. It explicitly states that the provisions do not cover professional news content, parody or satire content, or the dissemination of content for academic, artistic, scientific, or religious purposes.

This means that traditional media, such as newspapers and television broadcasts, remain outside the scope of this legislation in terms of its core regulatory functions. The bill's primary goal is to regulate the spread of harmful misinformation and disinformation on digital platforms, where such content can be widely shared with little oversight.

Hate Speech:

The Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 works alongside existing hate speech and racial discrimination legislation by addressing different but overlapping issues. While the bill focuses on curbing harmful misinformation and disinformation on digital platforms, hate speech laws target content inciting violence or discrimination based on attributes like race or religion. Both sets of laws complement each other, requiring platforms to manage false information and hate speech. Platforms would need to act under both frameworks when misinformation is used to incite hatred. This ensures that content is managed for its accuracy and the potential harm it causes to individuals and groups. Regulatory bodies like ACMA (for misinformation) and anti-discrimination authorities (for hate speech) ensure platform compliance under both frameworks.

As the legislative process continues, further amendments and clarifications may be needed to balance reducing online harms with protecting free expression and innovation in the digital sphere.

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