The Government is moving ahead with new regulation to combat misinformation and disinformation online, despite significant pushback from stakeholders
The Australian Government has introduced long-anticipated anti-misinformation and disinformation legislation
On 12 September 2024, the Australian Government unveiled the Combating Misinformation and Disinformation Bill. It follows last year’s public consultation on the matter in which the Government suggested legislation would be proposed in 2023. The (delayed) bill creates a new framework for the Australian Communications and Media Authority (ACMA) to hold digital platforms, such as X, to account for the spread of harmful misinformation and disinformation on their sites. The Government and ACMA are aiming to increase the transparency for users on how digital platforms are responding to false content in the hope of improving trust and restoring some of the value of these platforms to democratic debate. Since its initial consultation, the Government has also worked to ensure ACMA’s new regulatory powers are better balanced with protections for freedom of expression. ACMA’s initial efforts to tackle false information online led to the creation of the voluntary Code of Practice on Disinformation and Misinformation, to which several tech firms signed up in early 2021. However, according to ACMA’s third progress report on the functioning of the Code, 75% of Australians state that they are concerned about misinformation, further supporting the case for legislation.
ACMA will take on enhanced fining powers to police platforms which fail to comply with industry codes of practice
The proposed bill sets out definitions for both misinformation and disinformation, and outlines the responsibilities which platforms would have in mitigating the spread of harmful content. While both misinformation and disinformation refer to content that is reasonably verifiable as false, deceptive or misleading, disinformation is used when the content is intentionally and knowingly misleading. These new rules would require industry platforms to set standards of practice on mis- and disinformation, which would be legally binding upon adoption. The new bill would also enable ACMA to set its own industry standard if the industry code of practice was found to be insufficient; however, the regulator would not be responsible for responding to specific instances of harmful content. Previously, the Government considered including an exemption for content published by public bodies and political parties. However, following extensive consultation, these exemptions have been removed, meaning that party political content that spreads disinformation or misinformation (including AI-generated material) would be in breach of the regulations. ACMA would be granted the ability to levy fines of up to 5% of global revenue of platforms that fail to prevent the spread of misinformation on their sites. This approach aligns more closely with global trends in online safety enforcement which favour fines for non-compliance set as a percentage of revenue or turnover, making enforcement more reflective of the size – and therefore influence – of the implicated platform. However, these powers would greatly expand upon the powers set out in Australia’s Online Safety Act, which limits regulators to imposing a specific monetary figure per infraction.
The bill and earlier consultation were both met with stiff opposition, delaying the Government’s ambitions significantly
The Australian Government’s efforts have been met with significant criticism, including in relation to ACMA’s proposed ability to fine non-compliant digital platforms. X owner Elon Musk has called the Government “fascists” in response to the new bill. The opposition party as well as civil society advocates, including the Australian Human Rights Commission, raised concerns during the consultation process over how a future bill could potentially restrict freedom of expression while also being an example of government overreach. In contrast, other respondents, including academics from the Queensland University, suggested that delineating between mis- and disinformation was an unnecessary and complicated distinction. Respondents were also critical of how the bill provides an exemption for news media from the new regulations. Not unlike the earlier News Bargaining Code, the Combating Misinformation and Disinformation Bill represents the Australian Government’s ambitions to lead global debates on platform regulation. As demonstrated by large platforms’ decisions to exit some aspects of the Australian social media market following the implementation of the Code, that leadership has also resulted in especially strong criticism and even non-compliance.
