Victorian Bar Association slams misinformation bill ‘double standard’

The Victorian Bar Association has warned that Labor’s proposed misinformation laws could result in ‘chilling self-censorship’.

Victorian Bar Association president Sam Hay KC.

The Victorian Bar Association says Labor’s proposed misinformation laws could result in “chilling self-censorship”, criticising the legislation for exempting governments from the same rules to which it would hold ­citizens as an “illiberal double standard”.

In a submission on the draft legislation, the association said the bill in its current form would require the media watchdog to “sift information from opinion or claims” and risk disfavoured opinions being “labelled and ­regulated as misinformation”.

The proposal, which will grant the Australian Communi­cations and Media Authority “extraordinary” powers to fine social media giants millions of dollars for content deemed to be “harmful” misinformation or disinformation, has also been criticised by Victorian barristers for its broad definitions.

“At the heart of the difficulties presented by the bill – not least the intrusion into freedom of expression – are the definitions of ‘misinformation’ and ‘disinformation’,” the submission says.

“These raise at least three conceptual problems.

“The first is the substantive breadth of the definitions, including the concept of ‘harm’.

“The second is the limited nat­ure of the exemptions that take content outside the definition of ‘misinformation’.

“The third is the statutory supposition that misinformation (however defined) is identifiable as such; and is capable of being so identified by ACMA (or indeed the service providers whom the bill effectively requires to monitor the content published via their services).”

The 12-page submission to the Law Council of Australia is a reversal in the Victorian Bar Association’s stance after it was criticised by some barristers for failing to condemn the proposal.

“Taking those matters in turn, 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 individual users of the relevant services,” the submission says.

The association said it was concerned that under the legislation, any information produced by the government was “by statutory definition, not misinformation”.

“Only information that is not authorised by government is capable of being ‘misinformation’ as defined,” the association said.

“That double standard is illiberal, and disadvantages critics of government in comparison with a government’s supporters.”

The Victorian Bar Association also said the definition of information itself compared to other types of online content was unclear in the draft legislation, with content on more controversial topics more likely to be ­labelled misinformation.

“Much online content involves combinations of fact, opinion, commentary or invective,” the submission said.

A spokesman for Communications Minister Michelle Rowland said the public consultation of the draft bill was ongoing.

Opposition communications spokesman David Coleman said the “powerful intervention” from the Victorian Bar Association succinctly addressed the many problems with the bill.