Barristers warn of misinformation bill’s ‘chilling effect’

The Victorian Bar Association says Labor’s revamped laws combating online misinformation will undermine free speech by encouraging ‘chilling self-censorship’.

Communication Minister Michelle Rowland during question time at Parliament House in Canberra. Picture: NewsWire / Martin Ollman

The Victorian Bar Association says Labor’s revamped legislation combating online misinformation will undermine free speech by encouraging “chilling self-censorship” and stifling discussions of “sensitive or controversial” views.

The body representing Victorian barristers said the bill posed a risk that content concerning “political, philosophical, artistic or religious topics” that contains a combination of fact and opinion could be captured by the bill and curtail free expression.

While acknowledging the importance of addressing false and harmful information online, the association said the legislation would ultimately be “ineffective and unworkable in responding to the harms to which it is purportedly directed”, and advised it should not be enacted in its current form.

The legislation, which will grant the Australian Communi­cations and Media Authority heightened powers to fine tech giants millions of dollars for hosting “harmful” misinformation or disinformation, has also been criticised for its “over-broad” definitions.

In its submission responding to the government’s second draft of the proposed bill, the association said the effects of the bill may be “particularly pernicious” if a platform or regulator is tempted to be “over-inclusive” of what qualifies as misinformation.

It also cautioned that users would be motivated to self-censor.

“The bill’s interference with the self-fulfilment of free expression will occur primarily by the chilling self-censorship it will inevitably bring about in the individual users of the relevant services (who may rationally wish to avoid any risk of being labelled a purveyor of misinformation or disinformation),” the submission said.

The association also warned that targeting content produced by fringe online communities was unlikely to address the “social problems animating the dissemination of false information”.

“It is widely accepted in liberal democratic societies that it is better to fight information with information and to attempt to persuade rather than coerce people towards positions grounded in evidence and fact,” the submission said.

Opposition communication spokesman David Coleman in Canberra.

Communication Minister Michelle Rowland said the legislation would not require platforms to remove content unless it was disinformation stemming from inauthentic behaviour, and those concerned about free speech should welcome the accountability it would impose on tech giants.

“We live in a world where seriously harmful, false information is spread at speed and scale by malicious actors who seek to pollute the information environment,” she said.

“As we saw in the aftermath of the Bondi stabbing attacks, existing laws and approaches are not sufficient for dealing with the way in which seriously harmful content spreads online.

“Doing nothing is not an option where the safety of Australians is at risk.”

As Labor faces a political fight to pass the legislation by the end of the year after the Coalition officially opposed the legislation, opposition communication spokesman David Coleman said the bill had “no place in Australia”.

“(The association) warns that the government’s planned laws would have a ‘chilling’ effect on our freedom of speech and that the legislation would be ‘unworkable’,” he said.

“This bill should never have been put forward, and it must be defeated.”