The Irony of Misinformation

There is a lot of misinformation on social media about the new legislation combatting Misinformation. I know it's ironic… misinformation being spread about a bill to combat misinformation.

So … here are the facts:

The Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 specifically defines both "misinformation" and "disinformation," with a focus on intent and potential harm.

Misinformation is defined as:

Content that is false, misleading, or deceptive and is reasonably likely to cause or contribute to significant harm. This content is often spread through ignorance, error, or mistake without deliberate intent to deceive.

Disinformation is defined as:

It is similar to misinformation in that it involves false, misleading, or deceptive content but includes the additional element of intent. Disinformation is spread deliberately to deceive or manipulate public opinion, often involving inauthentic behaviour, such as fake accounts or coordinated misinformation campaigns.

Free Speech

The Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 takes specific steps to distinguish misinformation and disinformation from protected forms of expression, such as opinion and reasonable free speech. The legislation is crafted to avoid infringing on freedom of expression by narrowly defining harmful content based on the potential for societal harm and by incorporating exemptions for specific types of speech.

Key Distinctions and Exemptions

1. Harm Threshold for Misinformation and Disinformation:

• The bill targets only content that is verifiably false, misleading, or deceptive and is reasonably likely to cause serious harm. This threshold excludes general opinions, subjective viewpoints, and most expressions of free speech.
• The types of harm considered include threats to electoral processes, public health, vilification of groups or individuals, physical injury, damage to critical infrastructure, and significant economic harm.

2. Exemptions for Protected Speech:

• The legislation specifically excludes professional news content, satire, parody, and content intended for academic, scientific, artistic, or religious purposes. These types of speech are explicitly protected under the bill, ensuring that they are not classified as misinformation or disinformation, even if they involve controversial or critical opinions.
• Private messages between individuals are also largely outside the scope of the legislation, focusing instead on publicly disseminated content on digital platforms.

3. Safeguards for Freedom of Expression:

• The bill adopts a co-regulatory approach by empowering digital platforms to create their own codes of conduct within the parameters set by the Australian Communications and Media Authority (ACMA). This approach is intended to provide flexibility, allowing platforms to distinguish between harmful content and benign expressions of opinion.
• Additionally, the bill does not mandate the removal of content or account suspensions unless there is evidence of inauthentic behaviour, such as coordinated efforts to spread false information via bots or fake accounts.

Practical Impact on Free Speech and Opinion

By setting these definitions and protections, the bill seeks to address misinformation and disinformation without unduly restricting opinion-based speech or legitimate discourse. In essence, content will only fall under the bill’s scope if it is both demonstrably false and likely to cause harm, thus protecting reasonable free speech while targeting harmful and deceptive information.

The legislation links these definitions to specific types of societal harm, including harm to public health, electoral integrity, economic stability, and social cohesion. By focusing on these criteria, the bill aims to address content that poses a substantial risk to public well-being and national interests.

The Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 is a comprehensive legislative proposal aimed at addressing the spread of misinformation and disinformation on digital platforms in Australia. Recognising the risks posed by false or misleading content, the bill is designed to protect public health, electoral integrity, societal cohesion, and economic stability by empowering the Australian Communications and Media Authority (ACMA) to implement oversight mechanisms on digital platforms. The legislation is driven by concerns that voluntary industry measures, though a positive initial step, have proven insufficient in curbing harmful content, primarily due to inconsistent adherence across platforms and inadequate transparency. The government perceives the unchecked spread of misinformation and disinformation as a failure by digital platforms to account for the societal costs of such content, thus necessitating regulatory intervention to safeguard the public interest.

Key Issues Addressed and Proposed Remedies

Problem of Misinformation and Disinformation:

• The bill addresses the challenge of digital platforms being used to disseminate false information that can lead to significant societal harm, such as undermining electoral processes, harming public health, and inciting violence or hatred towards specific groups.
• There is a recognised market failure, where digital platform providers and content creators do not consider the broader social costs of misinformation, leading society to bear these negative impacts without recourse.
• The existing voluntary industry code has proven inadequate, as it is inconsistently applied and does not include all platforms, leaving gaps in enforcement and transparency.

Specific Remedies Proposed:

• ACMA’s Powers: The bill grants ACMA the authority to gather information from digital platforms, enforce codes, and set industry standards if voluntary codes prove ineffective. ACMA can impose penalties for non-compliance and mandate remedial actions where necessary.

Obligations for Digital Platforms:

• Platforms must conduct regular risk assessments to identify potential misinformation risks.
• Development and publication of media literacy plans to help users identify false information.
• Implementation of a complaints and dispute resolution process to address misinformation and disinformation issues raised by users.

Transparency Requirements: Digital platforms must make their policies regarding misinformation publicly accessible and report regularly to ACMA on their efforts to mitigate harmful information.

Research Data Accessibility: Proposed amendments to the bill require platforms to provide qualified researchers with access to data for non-commercial research purposes, aiming to enhance transparency and the effectiveness of response strategies.

Impact on Individuals and Businesses

Implications for Individuals:

• Increased media literacy initiatives by digital platforms may empower users to better assess the validity of information they encounter online.
• The regulation of harmful content and transparency measures are intended to protect the public from the potentially dangerous consequences of misinformation, such as health risks or threats to democratic engagement.
• Some individuals may have concerns regarding privacy, especially given the potential for expanded data collection and reporting mechanisms.

Implications for Businesses:

• Digital platforms, particularly smaller providers, may face higher compliance costs related to record-keeping, risk assessments, and maintaining dispute resolution processes.
• Platforms will need to align their content management policies with ACMA’s standards, potentially leading to a more cautious approach to content dissemination to avoid civil penalties.
• The bill’s co-regulatory framework may raise operational challenges, but it allows for flexibility, as platforms can develop their own codes of practice under ACMA’s oversight.

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