A win for freedom of speech? A report on the demise of the misinformation/disinformation bill

With the recent news reports that Meta will no longer be fact checking (see AFR article), we thought it appropriate to briefly reflect on the demise of the Australian Government’s bill which aimed to protect against misinformation and disinformation. The bill was the subject of criticism by media and internet organisations which argued that it would have created too great a burden on freedom of speech.

The controversial misinformation/disinformation bill will not become law after the Government decided not to pursue the legislation due to opposition in the Senate.

Minister for Communications Michelle Rowland announced on 24 November that the bill would not be proceeding any further. 

Titled the Communications Amendment (Misinformation and Disinformation) Bill 2024 (Cth),^[1] the proposed legislation sought to hold big tech companies and media communication platforms accountable for the spread of misleading and deceptive content on their services. 

As further explained below, some key industry participants and third parties contended that the bill overstepped its protective aim and would have disproportionately affected Australians’ right to freedom of expression. 

Communications Amendment (Misinformation and Disinformation) Bill 2024 

Under the bill, the Australian Communications and Media Authority (ACMA) would have been authorised to request that digital communications platforms develop “misinformation codes”,^[2] the key focus of which would have been to implement measures that prevent the spread of deceiving information that is likely to cause “serious harm” to Australian communities.

Although the bill provided matters that needed to be considered when constructing these codes,^[3] digital platform providers would have been allowed to develop codes specific to their platform and adapt these codes in response to the needs and capabilities of their respective communication sector.^[4] 

Misinformation is defined in the bill as information that was “verifiably false”, that had been provided to one or more end-users on a digital service and was reasonably likely to cause or contribute to serious harm.^[5] 

Disinformation is defined as a subcategory of misinformation in relation to which there are grounds to suspect that the person disseminating, or causing the dissemination of, the content intends that the content deceives another person, or the dissemination otherwise involves inauthentic behaviour. The bill does not specify how information would be verified as false. The Minister would, however, be able to determine specific matters which must be regarded when considering if that information was likely to cause serious harm.

“Professional news content’ platforms, as well as any other content that would reasonably be considered parody or satire, would have been “excluded dissemination” and excluded from the critical “misinformation” and “disinformation” definitions. Further carve-outs were also made for information that could have been reasonably regarded as parody or satire, and for reasonable dissemination of content for an artistic, scientific or religious purpose.

The structure of the bill was designed to encourage associations or bodies representing sections of the digital platform industry to develop industry codes, and to enable the ACMA to determine binding standards where a code is absent or is considered to be inadequate. This is similar to the existing structure in the Online Safety Act 2021 (Cth). Platforms that did not comply with their codes would have been subject to civil penalties, including penalties of up to five per cent of that company’s annual turnover. 

Various record-keeping powers would also have been granted to ACMA in order to facilitate any investigations required under the proposed Act.

Criticism of the bill

According to the Minister, the key objective of the bill was to increase the transparency and accountability of digital platforms in relation to their misinformation policies. This would be done in order to encourage more engagement from these platforms in putting protective measures in place, which would hopefully minimise the real harms this deceptive information has on people’s health and safety, Australian democracy and national security.

The Opposition and others raised a concern that the misinformation codes would encourage platforms to remove or censor posts made by Australians about important political and social issues. For example, in his speech regarding the bill, David Coleman, the Shadow Minister for Communication, called the bill an “appalling attack on free speech”, arguing that the bill provided inadequate protection for good-faith statements and discussions about religion, science and politics simply because they contain opinions that may be “unfashionable”. Colman also drew particular attention to the powers granted to the Minister to order for “misinformation investigations”, arguing that this would allow the Minister to direct ACMA to censor information relating to opposing political views, referencing claims made that the Liberal National Party was spreading misinformation in the lead up to the 2023 Voice referendum. 

In the seven day period allows for submissions on the bill, many individuals and organisations also made submissions criticising the proposed bill. Google, for example, while supportive of the Government’s decision to combat misinformation and a participant in ACMA’s voluntary misinformation code, objected to the broad investigatory powers granted to ACMA and the lack of clarity around what misinformation would be deemed to “contribute to serious harm”. 

The Digital Industry Group Inc. (DIGI), which advocates for the interests of companies including major digital platforms, shared these concerns, while also drawing issue with the lack of carve outs for official election material, arguing that Australia’s electoral integrity could be compromised if organisations were permitted to censor information from a particular political party.

Implied freedom of political communication

Australia’s only formal right to freedom of expression is through the “implied freedom of political communication”, which has been found by the High Court found to be implied in the constitution. This freedom acts as a legislative barrier, as opposed to an individual freedom, preventing state, territory and federal parliaments from exercising their legislative and executive powers in a way which would burden communication on issues that could reasonably effect voting choices, unless the legislation is reasonably appropriate and adapted, in the sense of being proportionate, to a legitimate purpose.^[6] 

Under the bill, ACMA would have been required to ensure that any determination made regarding the creation or breaches of a misinformation code was consistent with the implied constitutional freedom.  It did this by echoing the words of the test above, requiring the ACMA to be satisfied that the standard is reasonably appropriate and adapted to achieving the purpose of providing adequate protection to the Australian community from serious harm caused or contributed to by misinformation or disinformation n the platforms, and goes no further than reasonably necessary to provide such protection.^[7] While the bill would have undoubtedly burdened communications, the explanatory memorandum argued that due to this requirement and by focusing on media platforms instead of individuals, the bill was appropriately adapted to the bill’s legitimate purpose of ensuring that Australian voting choices were informed by reliable information so as to be constitutionally valid.

We will never know whether a court would have found the bill to be valid if challenged, as it will not proceed. 

Conclusion

As this is the Government’s second recent unsuccessful effort to progress a misinformation bill, and in light of the limited time until the federal election, it seems unlikely any similar legislation will be passed during the current term of Parliament. 
 

^[1]Communications Amendment (Misinformation and Disinformation) Bill 2024 (Cth)
^[2]Sched 1 cl48 
^[3]Sched 1cl44 
^[4]Sched 1 cl47
^[5]Sched 1cl13 (1)(a), 2(a).
^[6]Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 (‘Nationwide News’); Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 (‘Australian Capital Television’); McCloy v NSW (2015) 257 CLR 178 
^[7]cl 54 Communications Amendment (Misinformation and Disinformation) Bill 2024 (Cth)