The Albanese government’s misinformation legislation — a new draft of which was introduced in Parliament late last week — is one of the most extraordinary and draconian pieces of legislation proposed in Australia in the past few decades. It is so obviously misconceived, recklessly drafted and wilfully counterproductive that it undermines the entire argument against political misinformation.
The bill would grant the Australian Communications and Media Authority (ACMA) a vast regulatory authority over digital platforms such as Facebook and X, roughly similar to the sort of controls it imposes on broadcast television and radio.
On the surface, these new powers seem modest. ACMA would have the ability to approve “codes” and make “standards” for the platforms’ anti-misinformation policies. It would impose record-keeping requirements and transparency obligations for fact-checking.
The government says the bill does not provide ACMA with the power to directly censor any particular internet content or any particular users. And that’s exactly right! Instead, the bill empowers ACMA to write codes of conduct and standards that require digital platforms to conduct censorship on its behalf.
Censorship done at arm’s length is still censorship. The point of the legislation is to make codes that are legally enforceable. We already have a voluntary disinformation code. The government is trying to launder the radicalism of this legislation through the complexities of delegation and regulatory outsourcing.
Anybody with a passing familiarity with the evolution of Australian policy can guess what happens next. When the (children’s) eSafety commissioner was established under the Abbott government it was meant to target cyberbullying against children in response to specific requests. A decade later the commissioner is trying to take content down from X globally because of the risk that some (adult) Australians may be using virtual private networks. We’re a long way from the original intent of the Parliament in 2015.
I’m not trying to make a slippery slope argument here (“this bill seems reasonable, but it’ll lead to something outrageous later on”). The misinformation bill is outrageous already.
It targets misinformation as content that can cause serious harm to the electoral process, harm to public health (and the efficacy of public health measures), content that vilifies, that risks damage to critical infrastructure, and might cause imminent harm to the Australian economy, including to financial markets or the banking system.
These categories are ripe for abuse. It is trivially easy to imagine how the concept of “serious harm” could be manipulated by this government or a future one. Let’s say we have a debate over voter ID at polling booths in the coming years. Would we really be better off having that debate mediated for us by Commonwealth regulators and Meta’s compliance department? If anything, that would be more damaging to trust in the electoral system than leaving the discussion unbridled.
Digital platform fact-checkers can be skittish and they tend to overreact, particularly when they have regulators peering down their necks and when political tensions are elevated. Mark Zuckerberg admitted as much in August, saying it had gone too far during the pandemic and the 2020 presidential election. But moments of high tension are when censorship does the most damage to trust in institutions and the political system. High tension is when we need free speech the most.
The inclusion of banking and financial market harm as regulated misinformation is bizarre. What’s the most generous interpretation of this provision? That Facebook might be able to stave off a bank run through judicious content deletion? There is no credible economic theory that says suppressing public discussion about the financial system makes it more resilient.
The inclusion of public health, too, is galling if we see it in the current political context. The Albanese government has declined to institute a full inquiry into the COVID-19 policy responses of state and federal governments. Something seems backwards here. We’re not getting a proper audit of what was true and what was not true during the pandemic, but we are getting laws that would prevent untruths from being shared?
The government has been incensed by misinformation since it lost the Voice referendum, convinced that its opponents were being misleading. But it is often a mistake to turn political arguments into concrete legislation. Imagine if the misinformation law had passed before the referendum. It would have been an absolute gift to the No campaign — what are they hiding from you? The Albanese government has not thought this through.
The fact that the misinformation bill excludes the mainstream press and government speech from misinformation is obviously self-interested. But more critically this legislation reveals the incoherence of the anti-misinformation crusade. By trying to be precise about what speech is out-of-bounds, the government is asserting an authority over information it does not, and could not, have. We will absolutely regret putting the government in charge of public debate about the government.
Should politicians be playing a bigger role in combatting misinformation, or does this risk infringing on the right to free speech? Let us know your thoughts by writing to letters@crikey.com.au. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.
