Misinformation and Disinformation Bill 2024

Committee Secretary

Senate Standing Committees on Environment and Communications

PO Box 6100

Parliament House

Canberra ACT 2600

Kindly accept this submission in relation to the above Bill.

First, we object to the extraordinarily short period of time for the making of submissions in relation to this important Bill. The fact that there was an exposure draft of a similar Bill does not justify cutting short the consideration of the matter through this committee, which is an open process which enables the hearing of the issues concerning the bill in a public forum.

Secondly, this submission does not address all aspects of this Bill. The fact that we do not comment upon some aspect of the Bill does not mean we approve of it.

The purpose of this bill is to establish a system for the regulation of disinformation and misinformation on social media. The regulation will be achieved by the Australian Media and Communications Authority (“the Authority”) approving codes or creating legally enforceable standards for various parts of the social media industry.

In summary, there will be three types of code or standard: those produced by social media industry bodies which are approved of by the Authority; where there is no industry body the Authority will produce its own and thirdly where the industry body does not produce the code when requested to the satisfaction of the Authority or where the Authority finds a code to be deficient, the authority will produce its own standard.

This Bill follows an exposure draft produced by the Department of Infrastructure and Transport.

That Bill contained the following relevant definitions:

Disinformation :

the content contains information that is false, misleading or deceptive; and  (b) the content is not excluded content for misinformation purposes; and  (c) the content is provided on the digital service to one or more end-users in Australia; and  (d) the provision of the content on the digital service is reasonably likely to cause or contribute to serious harm; and  (e) the person disseminating, or causing the dissemination of, the content intends that the content deceive another person.

Misinformation:

the content contains information that is false, misleading or deceptive; and  (b) the content is not excluded content for misinformation purposes; and  (c) the content is provided on the digital service to one or more end-users in Australia; and  (d) the provision of the content on the digital service is reasonably likely to cause or contribute to serious harm.

Harm:

hatred against a group in Australian society on the basis of ethnicity, nationality, race, gender, sexual orientation, age, religion or physical or mental disability;  (b) disruption of public order or society in Australia; (c) harm to the integrity of Australian democratic processes or of  Commonwealth, State, Territory or local government  institutions;  (d) harm to the health of Australians; (e) harm to the Australian environment;   (f) economic or financial harm to Australians, the Australian economy or a sector of the Australian economy.

In this Bill, clause 13 says:

(1) For the purposes of this Schedule, dissemination of content using a digital service is misinformation on the digital service if:

(a) the content contains information that is reasonably verifiable as false, misleading or deceptive; and

(b) the content is provided on the digital service to one or more end-users in Australia; and

(c) the provision of the content on the digital service is reasonably likely to cause or contribute to serious harm; and

(d) the dissemination is not excluded dissemination.

(2) For the purposes of this Schedule, dissemination of content using a digital service is disinformation on the digital service if:

(a)     the content contains information that is reasonably verifiable

(b)      the content is provided on the digital service to one or more end-users in Australia; and

(c)     the provision of the content on the digital service is reasonably likely to cause or contribute to serious harm; and

(d)     the dissemination is not excluded dissemination; and

(e)     either: (i) there are grounds to suspect that the person disseminating, or causing the dissemination of, the content intends that the content deceive another person; or (ii) the dissemination involves inauthentic behaviour. as false, misleading or deceptive;

Excluded content under the original Bill included content produced in good faith for the purposes of entertainment, parody or satire; professional news content and content produced by an educational institution.

Under the current Bill excluded dissemination is broadly similar though it is not restricted to content produced by institutions, it extends to reasonable dissemination of content for any academic, artistic, scientific or religious purpose.

As we read it, professional news content will be restricted to the product of the mainstream media. Independent journalism is unlikely to be covered.

Under the exposure draft, a code or standard was not permitted to deal with “electoral or referendum matters” which was defined to include material that is authorised under the relevant legislation or “matter communicated for the dominant purpose of influencing the way electors vote in an election.” This exclusion has been removed.

Under the exposure draft, in determining its own standards, the Authority was to have regard to the implied freedom of political communication. This clause has been removed, though presumably clause 54 is intended to achieve the same result.

The changes between drafts both broaden and narrow the scope of the proposed law.

Welcome narrowing changes include:

1.    The change in 14(c) from ‘hatred’ to “vilification’

2.    The narrowing of the economic category in 14(e), and the rather less satisfactory narrowing in 14(f)

3.    The addition of sub clauses (g) and (h)

4.    The expansion of the academic etc category

On the other hand, the scope of the proposed law is expanded by

1.    The extension of the laws to elections, even though we criticised the previous exemption now they are specifically included

2.    The provision that information be “reasonably verifiable” as false etc[1]. The previous draft required the information be false etc. now it appears sufficient to show that some source such as a fact checker says it is true will be sufficient

3.    The provision in 13(2)(e) there need only be “reasonable grounds to suspect that” a person intends to disseminate the content. The previous draft at least required a subjective intention to send out false information, now all is required is an objective suspicion that a person intended to do so. This is a fundamental change and departs from what we have understood to be the critical feature of disinformation - it is deliberate. This represents a serious expansion of conduct that might be covered by this law.

An approved code or standard is a legislative instrument the breach of which exposes the social media entity to a civil penalty.

The authority is given a broad power to make directions to ensure that any code or standard is complied with.

We note the comment on the website seeking submissions on the exposure draft that the Authority will not be authorized to take down content. With respect, it is not clear to us why proposed clause 53 will not allow the Authority to direct a social media entity to do that. In any event, all of the major social media entities contain provisions in their codes which permit them to take down content. The effect of this Bill will be to give those provisions statutory force and to subject providers that do not take down material to penalties, which are described in the Impact Analysis tabled with the Bill as significant[2]

This legislation delegates to the Authority enormous power to deal with one of the fundamental rights of all Australians, the right to freedom of speech. It is our position that the Parliament should not delegate its power to make laws on this topic, at least when it comes to political speech. The changes from the exposure draft make the subject of this law even more clearly political speech. Parliament should make laws about political speech itself.

That the codes and standards are subject to disallowance does not alter this submission. The facts are that parliamentarians have little time and energy to review delegated legislation, with the result that it is not an effective check on executive power.[3]

It is not the position of this Council that speech cannot be regulated. It is also the position of this Council that there are things that are true and other things that are false and there are such things as facts.

It is our submission, that it is not appropriate to regulate freedom of speech by reference to the mechanism by which the speech is made. Freedom of speech is appropriately regulated by analysis of the interests of the speaker, the audience and the bystander in the particular type of speech act[4].

Any system of regulation should be done by reference to the type of speech that is involved for example political, commercial and professional (such as statements made by doctors to patients)[5]. If one thinks that social media does represent a categorical change then it should be considered in developing a policy for each type of speech act.

Even though there has been a welcome narrowing of the scope of the legislation it is still a law about the core of free speech - political speech. This is particularly so now that there is no exclusion at all for elections.

The government's role as an intellectual arbiter of the truth in social and political debate must be constricted, if not completely denied.  This is based on a deep scepticism about the good faith of those controlling the government.  That scepticism flows from the fact that decisions about what is true or false, when made by those in power, are bound up with political perspectives of those in power. In that regard the government is not impartial when it comes to contested disputes about the facts underlying political life.  This is not meant to be some conspiracy theory.  It derives from the fact that in the words of Lord Acton “All power tends to corrupt.” 

Given the lack of consensus about values in our society the underlying idea must be that everyone of us would want equal freedom with everyone else to be able to express our values and ideas as they relate to government and the management of our society. When we suppress a person’s ideas, we are violating that basic conception that everybody has an equal right to participate in the decision-making process on matters which may affect them. What must be added to this is the notorious fact that Governments consistently overestimate threats to the country and to their policies.

These propositions mean that freedom of speech includes the right to make false claims about social and political matters. In order to sustain uninhibited political discourse, the state cannot prevent resort to exaggeration or offence or even to false statements

Erroneous statements and exaggerations are inevitable in the heat of political debate. There are very few if any political claims that do not involve or rely upon either stated or unstated factual assumptions. Particularly in political and social discourse the tenets of one person may be viewed by another person as the rankest error.

To quote the American political philosopher Tim Scanlon[6]:

It is legitimate for the government to promote our personal safety by restricting information about how to make your own nerve gas but not legitimate for it to promote our safety by stopping political agitation which could, if unchecked, lead to widespread social conflict… The difference (between the two cases) is rather that where political issues are involved government is notoriously partisan and unreliable. Therefore, giving government the authority to make policy by balancing interests in such cases presents a serious threat to particularly important participant and audience interests. To the degree that the considerations of safety involved in the first case are clear and serious, and the participant and audience interests that might suffer from restriction are not significant, regulation could be acceptable[7].

Of course, outside the debate about social and political matters there can be prohibitions on lies about matters to do with politics. There is no objection to laws preventing false or misleading statements about the electoral process (eg when and where you can vote, how to cast a valid vote etc) or materially false statements of fact about a candidate. These are questions on which the State can be neutral and where the claims can be subject to empirical evaluation by ordinary process of law. But outside those narrow focuses the government is not the appropriate arbiter and can never be allowed to be it because it is not neutral.

To those who say that our politics needs a shared substratum of facts to function, we say that substratum cannot be created by the State. It must be generated by debate. The best answer to false speech remains counter-speech.

Living in a democracy means that we must trust citizens to make decisions on social and political matters. These types of laws are therefore fundamentally undemocratic since they evidence a clear lack of trust in the citizens of this country to make those decisions.

On reflection, our submission in relation to the exposure draft may have overstated our position.

We would re-state our position as follows.

For the reason set out above this bill is unsatisfactory. If the government says there are deficiencies in our laws relating to political speech, then it should introduce a Bill to parliament dealing with those deficiencies. At that point we could make a submission dealing with that Bill.

Outside of that, as an example, we return to the issue of statements about medical issues, since they are also dealt with in this Bill.

When it comes to medical issues, it seems to us that there are at least three categories:

1.     Statements made as part of the political debate such as the statements that were made during the pandemic about the effectiveness of vaccines[8]

2.    Statements made in advertisements for medical products[9]

3.    Statements made by a medical practitioner to a patient[10]

We have no objection to the delegation of Parliamentary authority in relation to the latter two categories to specialist bodies. However, as noted above the category of “political speech“ overlaps with many other categories because in deciding whether something is political speech, the question is what interests are being served by the statement. As was demonstrated during the pandemic the question of vaccine mandates clearly became a political issue and, in those circumstances, fell into another category deserving of the highest level of protection.

We trust this is of assistance to you in your deliberations.

[1] when the writer was first told of this by a journalist, he imagined Judges going to libraries and taking down dusty old copies of the works of AJ Ayer and the Vienna Circle. But sadly, it turned out not to be the case

[2] page 59

[3] Andrew Edgar Administrative Regulation-Making: Contrasting Parliamentary and Deliberative Legitimacy (2017) 40(3) Melbourne University Law Review 738 at pages 740-1 see also House of Representatives Practice (7th Ed) “Of the hundreds of pieces of delegated legislation presented each year very few are ever formally considered, let alone disallowed, by the House”

[4]  TM Scanlon A Framework for Thinking about Freedom of Speech, and Some of its Implications.  A lecture delivered in 2018 and found at https://www.law.berkeley.edu/wp-content/uploads/2018/10/Freedom-of-Speech-Berkeley.pdf

[5] The use of categories must be treated with care because some commercial speech may serve the same interests as political activity - T M Scanlon “Freedom of expression and categories of expression” in TM Scanlon The Difficulty of Tolerance Cambridge University Press 2003

[6] TM Scanlon Freedom of Expression and Categories of Expression page 98 in Scanlon The Difficulty of Tolerance Cambridge University Press 2003. Scanlon is one of the pre-eminent thinkers on the topic of free speech over the last 50 years.

[7] Of course, the State is entitled to take action to suppress speech if it is intended and likely to produce imminent lawless action

[8]It is noted, that QCCL is not an anti-vaccination organisation but does support a right to conscientious objection

[9] It is clear that the harm to people receiving poor medical advice or information is far greater than the harm to those who wish to deliver false information about drugs. Furthermore, most of the time the facts of the matter can readily be determined by reference to empirical evidence and involve no political controversy, so the scope for government bias is very limited.

[10] Relevant when considering the question of medical advice, is the fact that adults of capacity are entitled to make their own decisions about their medical treatment. So that in the context of medical treatment in many circumstances, at least in the first instance, the appropriate remedy may not be to ban advice but to compel practitioners to make full disclosure of the competing positions by introducing laws reinforcing the duty on practitioners to obtain the fully informed consent of the patient.