Who decides what’s true? The ‘gaping hole’ in Labor’s misinformation bill

Senators who probed the government’s new misinformation laws on Monday were searching for a crucial but elusive detail: how will the truth be determined under the government’s new regime?

The Australian Communications and Media Authority (ACMA)? Social media platforms? Fact-checkers employed by either entity?

“That is the gaping hole at the heart of the bill,” said James McComish from the Victorian Bar, one of three legal experts who responded to their inquiries. “For it to be shown that any content is misinformation or disinformation, the true position has to be identified.”

The government is seeking to pass new laws to combat political falsehoods spread on social media – but the opposition is wary.Credit: Matt Davidson

The assumption is that the social media platform will do it. If it fails, the regulator steps in. The laws simply suppose “the truth will be discerned along the way”, McComish said. “There’s a gap on the critical question, about how the truth … is to be set out. The bill just doesn’t tell us.”

With the Albanese government’s misinformation and disinformation bill on the brink of defeat as key senators withhold their support, Monday’s bruising Senate inquiry will do little to get them over the line.

Labor’s bill would give federal authorities the power to force tech giants to act on alerts about damaging falsehoods before they cause serious harm. While legal experts supported making tech platforms more transparent, they said the bill lacked answers to critical questions.

Asked by One Nation’s Malcolm Roberts who was the “arbiter of truth” under the new scheme, they could not say.

“Well, that’s the peculiar thing,” said constitutional law expert Anne Twomey. “When [the bill] talks about what’s ‘reasonably verifiable’ as false, how do you decide?”

The regulator, ACMA, said it would play no role in arbitrating content because that was the job of social media companies.

Twomey was unconvinced: “As a general principle, outsourcing censorship to foreign corporations is generally not a good idea.” Given the volume of content, she said, there was “not a hope” that tech employees in the United States could assess what would cause serious harm in Australia under the legislation.

ACMA said Australia would scrutinise their processes, which could involve a commitment to fact-checkers.

That still didn’t satisfy. “How do [fact-checkers] decide? Because they don’t have a clue, either. This is one point I really do want to stress,” Twomey said.

“They then ask experts. Now, I’ve been on the expert side of this ... And here’s my experience of it: The people who I’m dealing with try hard, and they’re well-meaning, but they’re not experts themselves in the field.

“These are young kids out of university … and they’re taking on this really important role of making a decision that will lead Meta or Google to make decisions about what is true or what is false.”

Fact-checking also depended on the experts chosen: their political persuasions, or who responded within tight time frames. “You can get quite distorted fact-checking reports as a consequence,” Twomey said.

“The process of working out what is ‘reasonably verifiable’ is not a very good one.”

Communications Department official Andrew Hyles said fact-checking was just one example of how the laws would work.

“There’s a whole bunch of other things outlined in the bill as well,” he said.

These included allowing users to report content, giving them information about the source of political ads, outlining policies for handling complaints, providing authoritative information about an issue, and improving digital literacy.

Labor risks adding to a logjam of more than 20 bills stalled in the Senate. Pressed by Nationals senator Ross Cadell, the department insisted it had done extensive stakeholder engagement on the bill.

“Then how is it at this point of the day, not one witness who isn’t a government agency … says this bill should pass as it is?” Cadell asked.

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