Top legal expert warns misinformation bill may lead to ‘worse problems’ through censorship

Constitutional law expert Anne Twomey has issued a warning on Labor’s bid to crackdown on online misinformation, raising concerns over the outsourcing of censorship decisions to foreign-owned social media companies.

Anne Twomey, director of the Constitutional Reform Unit, at the University of Sydney. Picture: Tomasz Machnik

Constitutional law expert Anne Twomey has warned Labor’s bid to crack down on online misinformation could “all go very wrong”, raising concerns over the outsourcing of censorship decisions to foreign-owned social media companies.

Professor Twomey said the bill – which will empower the Australian Communications and Media Authority to fine tech giants for false content it deems harmful – risked creating “worse problems” by suppressing free speech and undermining democracy.

In her first public comments responding to the final version of the legislation, Professor Twomey said the updated bill had addressed some of her concerns about the draft though issues remained around protecting the ­implied right of political communication.

Amid mounting fears that imposing the new measures on tech giants will place Australia at loggerheads with Donald Trump’s billionaire backer Elon Musk, the owner of X, Professor Twomey said the bill raised constitutional issues by capturing claims and opinions on political matters rather than just “verifiably false” information. “Then you’re right slap bang into political communication, and that’s where the thing will fall over,” she told a Senate hearing on Monday.

“Now the problem for me is that when I read the bill, I thought, it’s OK, because it’s referring to things that are verifiably false, and it’s only dealing with if you’re mucking up the electoral processes, not the political content.

“When I read the explanatory memoranda, it’s saying something completely different, and that confusion, for me, is where potentially the constitutional problem comes in.”

She said while the legislation did not appoint the ACMA as the “ministry of truth”, as some critics had claimed, the framework did require the media watchdog to assess what constitutes misinformation and disinformation to monitor digital platforms.

Constitutional expert Anne Twomey has voiced concerns about the amended misinformation bill. Picture: Tomasz Machnik

Declaring that she didn’t “trust” social media companies, Professor Twomey said she had previously assisted fact checkers for platforms who are often “young kids out of university” with a tendency to “distort” advice from experts inadvertently.

“As a general principle, outsourcing censorship to foreign corporations is generally not a good idea,” she said.

As Communications Minister Michelle Rowland faces a political fight to pass the legislation, with the Coalition opposing the bill and key crossbenchers withholding their support, opposition communications spokesman David Coleman said the evidence Professor Twomey shared with the Senate committee were a damning assessment of Labor’s bill.

“These criticisms strike a dagger in the heart of Labor’s misinformation bill,” Mr Coleman said.

“Professor Twomey’s conclusion that ‘it could all go very wrong’ backs up the views of thousands of Australians who have made strong submissions firmly opposing Labor’s censorship bill.”

When asked about criticism the bill would require the ACMA to make an assessment on misinformation even though it is the platforms that are moderating the content, the agency’s deputy chair Creina Chapman said its role was primarily about “improving systems and processes”.

“It’s quite clearly stated in the bill that we are not permitted to consider the content that has been subject of decisions that have been made by platforms,” she said.

Coalition MPs have also raised concerns the legislation, along with a suite of online safety reforms, could ignite tensions between the Albanese government and a Trump White House.

Ms Rowland has repeatedly defended the bill, saying it strikes the right balance between protecting free speech and fighting dangerous misinformation.

Victorian barrister James McComish said the framework in its current form could encourage social media platforms to label “disfavoured opinions” as misinformation, which is therefore captured by the legislation.

Human Rights Law Centre senior lawyer David Mejia-Canales said he did not believe the bill should be abandoned but it ought to be amended.