Law Council warns of misinformation bill’s risk to free speech

The Law Council of Australia has warned Labor’s proposed misinformation laws will likely have a ‘chilling effect on freedom of expression’ by allowing social media giants and the media watchdog to decide what constitutes misinformation.

The peak body for the nation’s lawyers has warned Labor’s proposed misinformation laws could have a “chilling effect on freedom of expression” by allowing social media giants and the communications watchdog to decide what constitutes information, opinion and claims online.

The Law Council of Australia cautioned that the draft legislation could encourage platforms to be “overly careful in censoring content” when judging what constituted misinformation, adding that “disfavoured opinions might come to be labelled and regulated as misinformation”.

The Law Council said the bill, which will give the Australian Communications and Media Authority the power to fine social media giants millions of dollars for misinformation and content it deems “harmful”, was “overly broad, uncertain, and may have serious unintended consequences”.

The draft legislation will see digital platforms continue to moderate online content and empower ACMA to seek information from the platforms about measures they have in place to address misinformation and disinformation, and enforce an industry standard if self-regulation fails.

“The prospect that digital platform providers and ACMA will be required to sift ‘information’ from ‘opinion’ or ‘claims’ is itself likely to have a chilling effect on freedom of expression; especially in sensitive or controversial areas,” the submission said.

“The effect may be particularly pernicious if a regulator or platform is tempted to be over-inclusive about what counts as ‘information’ rather than ‘opinion’.

“The risk is that disfavoured opinions might come to be labelled and regulated as ‘misinformation’ (i.e., as misleading facts, and not as opinions).”

The Law Society said that while the threat of online misinformation and disinformation was serious, any laws targeted at reigning it in should be “carefully designed to balance the public interest in ensuring content posted online is not contributing to harm, with individuals’ ability to speak freely”.

“While there is a need to address false or misleading digital content which may cause harm, the Law Council is concerned that the practical effect of the regulation proposed by the exposure draft is a disproportionate response to the risk,” the submission said.

“In recognition that the draft bill is broad and imprecise in its terminology, may result in confusion in its application, and is likely to impact on the freedom of expression and privacy of Australians.”

The submission, which was compiled on behalf of 17 bar associations and legal bodies across the country, also raised concerns that the bill’s definitions of misinformation and disinformation as well as harm were broad and poorly defined.

“The Law Council is concerned that the definition of ‘harm’ in the draft bill is overboard, especially when read in light of the definition of ‘misinformation’, under which material is caught not merely when it in fact causes serious harm (however defined) but also when it is only ‘reasonably likely’ to do so; or when it might only ‘contribute to’ such harm,” the submission said.

Opposition communications spokesman David Coleman said the submission was a “devastating, forensic take-down” of Labor’s proposed laws that “meticulously demolishes” its key elements.

“It rings the alarm about the coercive government powers which could be used against anyone suspected of misinformation. And it slams as unrealistic the idea that ACMA can easily distinguish between what is true and what is false,” Mr Coleman said.

“The submission is all the more powerful for the fact that it is speaking for Australia’s peak legal bodies, from every state and territory.”

Communications Minister Michelle Rowland said the consultation on the bill was still in progress and the bill in its final form would “help keep Australians safe from seriously harmful misinformation and disinformation online”.