A legal advocacy group has raised concerns over a proposed bill by federal Labor, that if it were to become law, would arm a government department with ‘extraordinary coercive powers’ to monitor and enforce an ‘industry standard’ of misinformation and disinformation on digital platforms.
The Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2023 is on public exhibition until August 6.
According to federal Labor, the proposed powers would ‘enable the Australian Communications and Media Authority (ACMA) to gather information from digital platform providers, or require them to keep certain records about matters regarding misinformation and disinformation’.
And ‘should an [enforceble] code of practice be deemed ineffective in combatting misinformation and disinformation on digital platforms’, the proposed law would ‘allow the ACMA to create and enforce an industry standard (a stronger form of regulation)’.
Within the Victorian Bar’s submission to the Law Council regarding the bill, they write, ‘The Bill arms the ACMA with extraordinary coercive powers that can be exercised against any person who might have information or documents “relevant” to the existence of, among other things, “misinformation or disinformation on a digital platform service”.’
‘Suspected authors or disseminators of alleged “misinformation” are obvious targets for the exercise of such powers. That makes this part of the Bill somewhat unique within its overall scheme – here the Bill is concerned with the responsibilities of individuals, rather than services providers’.
Unlevel playing field
Additionally, the Victorian Bar says the law would create ‘an unlevel playing field between governments and other speakers’.
They write: ‘Any view authorised by the government is, by statutory definition, not “misinformation”, however false or misleading it might be. Only information that is not authorised by government is capable of being “misinformation” as defined.
‘That double standard is illiberal, and disadvantages critics of government in comparison with a government’s supporters’.
Additionally, they say the definition of ‘misinformation’ is over-broad and unworkable; the concept of ‘excluded content’ is insufficiently protective of free speech, and places excessive interpretative power in an executive agency; the Bill wrongly assumes that ‘misinformation’ and ‘disinformation’ can readily be identified, and that the ACMA is capable of doing so within the limits of its resources and expertise and the imposition of regulatory burdens and other concerns.
The Victorian Bar concludes such a law ‘will have a chilling effect’.
They write, ‘It is also likely to be ineffective and unworkable in responding to the harms to which it is purportedly directed’.
Federal Communications Minister, Michelle Rowland, outlined in a June 25 press release: ‘It does not empower the ACMA to determine what is true or false, or to remove individual content or posts.’
‘The code and standard-making powers will not apply to professional news content or authorised electoral content,’ the minister said.
Paul Gregoire, from www.sydneycriminallawyers.com.au, writes that it ‘raises the question as to just who does determine the truth and who the targeted entities are, since the mainstream media and government are absolved’.