Regulating speech at law is much like regulating breath. At what point is an intake of air deemed inappropriate to the body and worthy of rationing? When will exhalation be allowed? The very idea that speech requires ordering and control is the first step to preventing its exercise. Death, in this case to freedom of thought and political expression, is bound to follow.
Unfortunately, the rationing of speech and its exercise is a favourite of governments the world over, even in liberal democratic countries. As it’s the only genuine way one can address the gross inequality between the power of the citizenry and the governing authorities exercising such a right is bound to strike terror in the hearts of those who shun accountability and criticism. Importantly, it also points to the possibility of losing control, be it over official narratives or myths deemed palatable to those in power.
Much of this was evident in the recently ditched Communications Legislation Amendment (Combating Misinformation and Disinformation) Bill 2024 proposed by Australia’s Albanese government. It was a bill that had already made its debut in a previous iteration but had been revised and redressed for parliamentary consumption. The revision, and redressing, failed to impress.
In Australian Senate hearings on the bill, the edifice began to crumble. Nationals Senator Ross Cadell, in a question to the Communications Department, wondered why there wasn’t a single witness not a member of the government agency who “says this bill should pass as it is.” On 22 November, the Greens demanded that the government pull the draft, arguing that it exempted such media titans as Rupert Murdoch while shifting the responsibility “to tech companies and billionaires like Elon Musk to determine what is true or false under ambiguous definitions.”
Facing certain defeat, the Albanese government revealed its position a few days later. “Based on public statements and engagements with senators, it is clear that there is no pathway to legislate this proposal through the Senate,” conceded Communications Minister Michelle Rowland.
On its demise, former deputy prime minister and Nationals MP Barnaby Joyce was characteristically colourful: “This shabby, decrepit, blanket over democracy is not even going to make it to the Vinnies bin, […] it’s going straight to the tip where it will be burnt.”
Why, then, was this bill so problematic? For one, it proposed adding schedule 9 to the Broadcasting Services Act 1992 (Cth), imposing core obligations on digital platforms to make their own risk assessments regarding misinformation and disinformation on their platforms, and publishing their findings on the matter; publish their policy or policy approach regarding how misinformation and disinformation is managed; and publish what an oddly named “a media literacy plan” that would outline the measures that the platform will take to enable users to identify misinformation and disinformation.
In first placing the onus on digital tech giants to effectively police content supposedly deemed by Australian government regulators to fall foul of the “mis-disinformation” bar, the warning shot to information exchange was being made with a clamour. But just to add another layer of stifling, rough and ready regulation, the Australian Communications and Media Authority (ACMA) would have been empowered to do a number of things. Its powers would have included obtaining documents and information regarding such misinformation and disinformation from the platforms, make rules regarding their recording and retaining of records on the same, even if disallowable by Parliament; approve and register misinformation codes, even if disallowable by Parliament; and determine misinformation standards in cases where the misinformation codes supposedly did not protect the Australian community.
When it comes to the relevant meanings, misinformation, for instance, is described in subclause 13(1) as content containing information “reasonably verifiable as false, misleading or deceptive.” Expansively, and chillingly, this intended to include opinions, claims, commentary and invective. Indeed, the Explanatory Memorandum is damning in noting, with approval, such a provision, warning that “experience from around the world suggests that misinformation and disinformation of this nature can influence public opinion and sway voter behaviour to such an extent that the outcome of an electoral process can no longer be said to represent the free will of the electorate.”
Disinformation, subclause 13(2), shifts the focus to intention, namely, the “grounds to suspect that the person disseminating, or causing the dissemination of, the content intends to deceive another person.”
The concept of serious harm in the bill was critical. Not only would it cover such instances as information on public health, but also “harm to the operation or integrity of a Commonwealth, State, Territory or local government electoral or referendum process.” Doing so would effectively vest ACMA with powers to comb through information shared during an electoral or referendum process, even if it was a mere opinion, true or false. Political speech becomes the object.
The Bill was also not intended to cover the dissemination of “professional news”—which more than suggests a threat to independent media outlets not officially approved as appropriate outlets for journalism.
In the US, we can at least rely on constitutional protections that saw the sinking of the absurd Disinformation Government Board, established in 2022 to guide the Department of Homeland Security (DHS) in targeting the deliberate dissemination of false information. The advisory body, while lacking, according to the DHS, “operational authority or capability”, was advertised as a council of wise creatures, working “in a way that protects Americans’ freedom of speech, civil rights, civil liberties, and privacy.”
The Board was swiftly, to cite a word common in press coverage at the time, “paused” after a mere three weeks on suspicions that it would be unworkable and unconstitutional. “Legally, it is rarely permissible for the US government to be the arbiter of truth,” wrote Jill Goldenziel for Forbes in May 2022. “The name suggested that it would do just that—despite DHS officials’ protests that it was designed to protect free speech.”
Despite these failings, the Board’s former chair, Nina Jankowicz, has been busy promoting its ideas abroad, notably on the issue of electoral interference. Jankowicz, who markets herself as a disinformation expert, did her best in a visit to Australia to warn about malicious agents attempting to meddle in the Australian electoral system. On Radio National’s Saturday Extra, she was unequivocal that the triumph of the “No” vote in the 2023 referendum held to decide whether an indigenous voice should be constitutionally enshrined, had been driven by some 9,000 digital accounts based in China. Never mind that the voters convincingly rejected the proposition. Despite admitting that one should still look “at the data” to verify her case, breezy speculation abounded. An indigenous voice to parliament could have threatened Chinese mining rights.
Joyce is only partly correct in assuming that this hideous bill perished in a fiery tip reserved for bad legislation. Its remains will be revived and reincarnated in due course, along with the justifications of danger, instability and chaos that arise when citizens traverse the World Wide Web unsupervised. And it is impossible to imagine a Coalition government, certainly one run by the paranoid Peter Dutton, resisting the temptations of restricting thought, content and communications expressed online.
Someone should have protected me from seeing Ms. Rowland’s outfit.