Misinformation bill will only feed conspiracy

Michelle Rowland during Question Time at Parliament House in Canberra. Picture: NCA NewsWire / Martin Ollman

Free speech is critical to our democracy. But it is vulnerable. If Australians don’t ferociously protect their free speech it could crumble and fall.

It will never be taken away in one step. We wouldn’t stand for that. But like a brick wall, if you slowly remove bricks one at a time, eventually the wall doesn’t exist, even though the removal of one particular brick might not mean the “end” of the wall.

And right now, our federal government is proposing the removal of at least one – perhaps more – bricks from Australia’s free speech wall.

The government has proposed an interestingly titled bill, the Communications Legislation Amendment (Combating Misinformation and Disinformation) Act 2023.

Make no mistake, this free-speech brick-removing legislation must be stopped.

I’ve read the draft legislation carefully, and it seemed to me the draftsman must have been in a rush. If one of the lawyers in my team produced the sloppy drafting I’ve spotted in this bill, there would be a hard conversation had in my office.

But poor drafting is the least of my concerns. You see, even the very best drafting cannot fix a bad idea. And the misinformation and disinformation bill is as bad a legislative idea or concept as I’ve seen.

In short, the bill proposes enormous powers be given to the Australian Communications and Media Authority to force social media companies such as Meta or Twitter to take down posts or tweets that ACMA, in its apparent all-knowing wisdom, decides is false and causes serious harm.

If the information deemed “false” is not taken down, these companies face fines of billions of dollars. No, that is not a misprint, they could face fines in the billions because these fines can be up to 5 per cent of a company’s global turnover, which for Meta could mean a fine of over $8bn given the company’s global turnover is around $170bn.

If there’s another piece of Australian legislation providing for fines of anything even close to that sum, I don’t know of it. So, in a nutshell, the government (through a government agency it declares is “independent”) will decide what is true and what is false, and then determine what you can and can’t read. Given the government can appoint ACMA, direct ACMA and sack ACMA, I’d hardly consider ACMA “independent”. Communications Minister Michelle Rowland was reported this week saying the proposed legislation is “not about moderating content”.

Frankly, Minister, my reading of the proposed legislation says that is exactly what it’s about.

In practice, you probably won’t even know about these ACMA determinations. If the government gets its way, the information will be just quietly taken down before you get a chance to consider it.

The concept is not only scary, it’s just so stupid. For example, do our politicians think silently trying to remove from TikTok or Twitter specific posts that might put forward a crazy conspiracy theory will assist in the crazy theory not gathering momentum? Surely it will do the opposite. For those inclined to either spread or believe such theories the silent disappearing of these posts will be confirmation of their accuracy.

Pushing things underground will empower those wanting to spread the misinformation or disinformation and increase the chances of others believing the bollocks.

It will also take away the ability for sensible citizens – being the vast majority of us – to call out such fallacies and convince others who might have believed them. The best way to stop misinformation is to call it out. Let the discussion occur and let truth prevail – as it always will.

Aside from obviously crazy conspiracy theories, this proposed legislation has the potential to not only stifle debate, but also stifle development. Society’s views evolve over time with debate and discussion. Things we consider normal and acceptable in 2023 would have been frowned upon and probably considered by the establishment 50 years ago to be “false” and cause “serious harm”.

For example, 50 years ago homosexuality was illegal in every single jurisdiction in Australia. It was considered an “abomination” by the establishment. Hard to imagine today. If this type of legislation had existed 50 years ago to stop people proclaiming – as is now accepted and as is right – that homosexuality is not an abomination, then the rights our LGBTI community rightfully enjoy today would probably not exist.

“In practice, you probably won’t even know about these ACMA determinations. If the government gets its way, the information will be just quietly take down before you get a chance to consider it,” writes Justin Quill.

Obviously Twitter and TikTok did not exist 50 years ago, but my criticism is about the concept of stopping people declaring publicly things they think are right when the government of the day considers them false.

What about climate change? Will people who claim climate change is not real have their posts silently removed. Surely we should be allowing such debate. Silencing debate will not help convince the non-believers. It will entrench them. No good can come of just suppressing the debate.

And then there’s the drafting. Oh, the drafting.

One of the key pillars of the legislation is the definition of misinformation (and disinformation). For the legislation to kick in, the information being distributed must not only be “false” but also be “reasonably likely to cause or contribute to serious harm”. You would expect – at the very least – “serious harm” would be defined. It is not. Harm is defined, but not serious harm. It’s like the draftsman forgot they had only defined harm when they included the requirement for serious harm. Sure, this could be easily remedied. But it’s just one of many drafting issues. The whole bill smacks of legislation that has not been properly thought through and is half-baked.

Having said that, I do feel sorry for the draftsman given the task to try and polish this proverbial.

So where does this end? Today it’s the government proposing control over people’s social media posts. But if “protecting the community” from such posts is a good idea, why not extend the government’s control to the media? Maybe that will be the free-speech brick that’s removed tomorrow.

Justin Quill is a media lawyer with major law firm Thomson Geer, which acts for The Australian.