No matter how you spin it, the misinformation bill seeks to control public discourse

Yes supporters gather in Light Square, Adelaide, in 2023. Picture: David Mariuz/NewsWire

Why did the voice referendum fail? If you ask prominent advocates in the Yes campaign they will tell you it failed because of misinformation.

During the campaign and after it, Marcia Langton, Tom Calma, Linda Burney and Noel Pearson, among others, all referred to misinformation being a crucial reason the Yes position failed to win a majority of votes.

Of course, false claims and rumours were disseminated. Nevertheless, proponents of the voice also had a tendency to brook no dissent. In a fact check published in October last year, Guardian Australia deemed claims about the voice’s legal risks, potential for division and lack of detail to be misinformation. But opinions are not facts, and personal judgment cannot be subject to the same standards of accuracy as empirical claims. And on the topic of the voice, opinions differed.

In a document published by La Trobe University, Challenging Misinformation about Sex and Gender Diversity, Australian academics have described terms such as “biological woman” and “biological man” as “harmful myths”.

In this case, it is not merely a difference of opinion that is being labelled false – as in the case of the voice – but words and concepts that have long-established scientific and cultural meaning.

In another document published by the University of Melbourne’s Trans Health Research group, a diverse range of claims is characterised as misinformation.

They include linking transgenderism to poor mental health, suggesting that puberty blockers may have irreversible effects or suggesting that a significant subset of young people who do transition may come to regret it later.

Misinformation, according to this health group, also leads trans youth to have an increased risk of suicide. In this case, the use of the term misinformation is being used to foreclose inquiry. The term has been instrumentalised to present hypotheses as proofs.

It’s not only academics who have instrumentalised the term to service their own credo. Federal Climate Change and Energy Minister Chris Bowen has accused the Coalition of spreading disinformation about nuclear energy.

One journalist for Guardian Australia has accused Australian Nuclear Science and Technology Organisation former chief executive Adi Paterson of “peddling misinformation”. Paterson’s crime? Critiquing the economic modelling of the CSIRO.

Chris Bowen.

It’s easy to see how such a term can be exploited for political ends. Even so, misuse of the term does not negate the fact false information exists and spreads rapidly online. Misleading content is published in print and online every second of every day, in every region of the world. But while all of us have a responsibility to challenge falsehoods in the public domain, it is not the government’s role to act as an authority on what is true.

Similarly, it is not the government’s role to deputise such an authority to platforms it seeks to regulate.Yet this is precisely what Communications Minister Michelle Rowland’s Combatting Misinformation and Disinformation Bill proposes to do.

The bill defines misinformation as “content (that is) reasonably verifiable as false, misleading or deceptive” and “reasonably likely to cause or contribute to serious harm”. The definition of “serious harm” includes harm to electoral or referendum processes, harm to public health, vilification of a group, as well as imminent harm to the Australian economy.

The body in charge of interpreting these definitions and ensuring that digital platforms (social media companies) comply with this legislation is the Australian Communications and Media Authority. It will be vested with increased powers.

The bill “will lead to a culture of pre-emptive censorship and chilling effects”, Sydney barrister Gray Connolly told me.

Michelle Rowland

“Measures taken to combat misinformation and disinformation could themselves risk undermining Australia’s democracy and freedoms,” Human Rights Commissioner Lorraine Finlay wrote.

And in a submission on the bill the Law Council of Australia has said: “Given the breadth of the definition of ‘misinformation’ as outlined above, the Law Council cautions that a digital platform is unlikely to have sufficient expertise or adequate resources to make accurate and completely informed determinations as to whether content is false.” To be compliant with the law, platforms will be required to self-censor large swathes of information that appears online

It is possible to recognise that the spread of false and malicious information is a problem, while also recognising that any centralised top-down control of information is a bigger problem. This bill will embolden those who already exploit the term to brook no dissent, foreclose inquiry and declare commonly shared words and concepts to be harmful.

The context and timing of the introduction of the bill is significant. The government is scarred by its experience of the voice referendum, when a proposal that had been nurtured for years was rejected by 60 per cent of Australian voters. The first stage of the Kubler-Ross cycle of grief is denial, followed by anger, then bargaining, then depression and acceptance.

We can see denial at play in the proposal of the bill. The government fails to grasp the complexities of regulating online speech, with all the conflicting interests and interpretations that go along with it. Denial results in legislation that appears woefully overbroad for its stated purpose.

Australian Human Rights Commissioner Lorraine Finlay.

We can also see anger and bargaining at play. The government’s actions could be seen as a calculated response to its perceived loss of control over public discourse. The anger is directed at those it views as purveyors of misinformation, (social media companies) while the bargaining takes the form of redefining the rules of engagement in the public sphere.

By seeking to instrumentalise misinformation in the lead-up to the next election, it is trying to negotiate a more favourable position for itself in the court of public opinion. Rather than accepting that the way we share information has changed forever, the government is stuck in the earlier, more reactive stages of grief.

The misinformation bill is an attempt to bargain its way back to a past where it held greater sway over public opinion.

Claire Lehmann is founding editor of Quillette online magazine.