Why bureaucrats can’t be left to censor free speech under Labor’s ACMA bill proposal

“The tech platforms will want to avoid the big fines ACMA can impose if it deems they aren’t doing enough to comply with the legislation. So they will self-censor content to try to ensure that doesn’t happen,” writes David Coleman.

Australia’s democracy is the best in the world. It is messy, frustrating and wonderful. People say all sorts of things – some brilliant, some mundane, some absurd. Many things are said that we may argue are misleading.

Our democracy isn’t owned by any government or any bureaucrat. When governments seek to put undue restrictions on our democratic freedoms, we must speak up. The exposure draft for the Communications Legislation Amendment (Combating Misinformation and Disinformation) Bill recently released by the Albanese government contains many concerning provisions. If passed in its current form, it will curtail legitimate political speech in Australia.

The bill gives the regulator, the Australian Communications and Media Authority, very substantial powers. ACMA’s key power under the legislation is the ability to impose massive fines on digital platforms if it thinks they are not doing enough to stop misinformation and disinformation.

Misinformation is defined very broadly. It is information that is “false, misleading or deceptive” and is “reasonably likely” to “cause or contribute to serious harm”. The bill then uses an extremely wide definition of harm, which includes things such as harm to the environment, harm to the economy or a section of the economy, or “disruption of public order or society in Australia”.

There is no requirement that the maker of the statement knew it was misinformation or that they intended to cause harm. The potential application of the law is incredibly broad. Every day, thousands of Australians make statements that could be described as unintentionally misleading. Whether something is misleading or not is often very subjective. And clearly whether serious harm is likely to result from such a statement is also very subjective.

The tech platforms will want to avoid the big fines ACMA can impose if it deems they aren’t doing enough to comply with the legislation. So they will self-censor content to try to ensure that doesn’t happen. It’s inevitable that in the process of doing this the legitimate speech of Australians will be suppressed. That is deeply concerning. The government absurdly argues that the bill does not allow ACMA to regulate speech. In fact it allows for exactly that.

David Coleman

It’s true that under the legislation ACMA doesn’t make rulings on individual pieces of content. But it does decide whether a digital platform is doing enough to stop misinformation and disinformation. It can do that only if it has an opinion on what constitutes misinformation and disinformation. Otherwise, how could ACMA enforce the law?

The bill is very poorly constructed and includes many obvious red flags. Under Labor’s bill, if the government says something, then it is not misinformation. Authorised content from any level of government cannot be misinformation. That same protection does not apply to non-government parties or ordinary Australians commenting on political matters. This is indefensible.

Statements made by academics are exempt, but not statements made by non-academics on exact­ly the same topics. So an outsider with an unfashionable view could find their contribution has been deleted as misinformation. Given the seismic contributions of unfashionable outsiders throughout history, this shows an extraordinary lack of wisdom.

Statements made as part of “professional news content” are exempt, but those statements are not exempt in other contexts. So if a journalist made a comment on their personal Facebook page, or appeared on an independent podcast, their statements could be misinformation. And if a statement made in “professional news content” is repeated outside of that environment, it would not be exempt from the law.

The bill excludes statements made in good faith for the purposes of entertainment, parody or satire. But it does not exclude statements made in good faith for the purpose of political debate. So a comedian commenting on politics would be protected from having their content removed, but a non-satirical citizen offering their honest views on political matters would not be protected.

Michelle Rowland

ACMA’S coercive powers under the bill are very concerning. Those powers apply not only to digital platforms but to all Australians. ACMA may pursue any person if it believes they have information about “misinformation or disinformation on a digital service” and that it requires the information to perform its functions. ACMA can force the person to appear before it to answer questions about misinformation or disinformation.

These are just some of the problems with the bill. There are many more. It is remarkable that Communications Minister Michelle Rowland has put her name to it.

Whether you are conservative, left wing or somewhere between, you should be concerned about this bill. It directly involves the government in political communication. It gives immense powers to ACMA. And it creates a huge financial incentive for tech platforms to remove statements made by Australians, even if they were made in good faith. The government has misfired badly on this issue.

David Coleman is opposition communications spokesman.