TGB Media and Press

‘Misinformation’ versus freedom of speech

As the federal government prepares legislation to stop publication of what is deemed false, misleading or deceptive information likely to cause harm, TGB Lawyers’ Senior Lawyer and Business Advisor, Morry Bailes, in this Opinion piece for InDaily, explains why lawyers and the Australian Human Rights Commission are lining up against it.

‘Misinformation’ versus freedom of speech

Misinformation, or freedom of expression?

Recent government attempts to prevent publication of what it deems “misinformation” makes it clear that we are encountering another battlefront for our right to be heard.

Backpedal to the US federal government efforts during 2022, when it established the Disinformation Governance Board, as a case in point. It was as Orwellian in name as it was in function. The raison d’etre was that Government ought to have the power to prevent publication of opinions that spread disinformation, misinformation and malinformation. The Disinformation Governance Board was to advise the Department of Homeland Security. Announced in late April 2022, the idea was canned by August after a public outcry, with some Americans likening the set-up to the Ministry of Truth in Orwell’s 1984.

So what is this new concept of misinformation? Is it yesterday’s “fake news”?

Illustrative is the recent decision by a US court concerning the legitimacy of what the Biden administration did during the Covid era when it encountered social media publications contrary to the public health messages at the time. These publications included questioning the effectiveness of wearing masks to stop the spread of Covid, the value of being immunised, that Covid originated in a Wuhan laboratory rather than in Wuhan wet markets, and that lockdowns were overly costly in economic terms.

None of these matters, irrespective of whether you agree or disagree with their underlying proposition you might think would be treated as anything other than legitimate societal discourse on important matters facing communities during the Covid pandemic. However, the US federal executive government saw it differently. This was, in the eyes of the administration, “misinformation”. The administration then “coerced” and “significantly pressured” social media sites such as Facebook and Twitter to remove the posts perceived to be offensive.

The lawfulness of the actions of the Biden administration for its part in the removal of what ultimately counted in the millions of publications, came before a US appeal court and was decided last week. Significantly, this was the fifth circuit of the Federal Court, not a state court, and was presided over by three Federal Court judges. It upheld elements of the findings of the court in first instance, confirming the unlawfulness of what the Biden administration had done, saying it was a breach of Americans’ right to freedom of expression. Amongst the publications that the administration coerced social media outlets to remove included stories regarding the Hunter Biden laptop story and the 2020 election result.

The appeal court however narrowed the terms of an injunction ordered by the court in first instance, and an appeal lies to the Supreme Court by the Biden administration, thus we may not have heard the last of this case. Notwithstanding it serves as an example of what is ultimately a subjective matter. What the administration saw as harmful misinformation, the courts found was legitimate social discourse.

Fast forward to Australia today and the Albanese government has before the federal parliament a similar type of bill which it seeks to become law, allowing the government to effectively prevent the publication of what it perceives to be misinformation and disinformation. The difference according to the bill is that disinformation is false, misleading or deceptive information published intending to deceive. Misinformation is merely false, misleading or deceptive information. An added requirement in each case, to trigger a regulatory response, is that the information is “likely to cause or contribute to serious harm”. The full name of the intended legislation is the Communications Legislation Amendment (Combating Misinformation and Disinformation) Bill.

“What the administration saw as harmful misinformation, the courts found was legitimate social discourse.”

It is fair to say that the bill hasn’t gotten a great deal of support amidst concerns it will impact freedom of expression in this country for precisely the same reason the Biden administration currently finds itself in trouble; one person’s views and public dialogue is another person’s lies. But where to draw the line?

The Australian Human Rights Commission says the bill is “overly broad and vague” when it comes to the key concepts of misinformation, disinformation and serious harm. This is not an encouraging start. It questions whether the ‘serious harm’ referred to in the bill enabling government action is adequately defined and whether the government must prove causation: that is, prove that actual harm has occurred before it could exercise the powers granted to its agency by the bill.

It points to a further concern, namely that the government itself is exempted from the rules because government publications will be “excluded” from the bill. Nothing that a government ever says then can amount to misinformation and disinformation. Dear me. The concept of government administration that never lies. There’s a first.

Finally, the Australian Human Rights Commission is troubled that a singular agency (to be the Australian Communications and Media Authority—ACMA) will be the determiner of what is misinformation and disinformation and serious harm on digital platforms, and says that “could be used to legitimise attempts to restrict public debate and censor unpopular opinions”.

In summary, the commission says the bill has not struck the right balance and that if we do not get it right we “risk undermining Australia’s democracy and freedoms”.

The Australian Human Rights Commission is far from the only body expressing serious misgivings about the legislation. Lawyers don’t like it. The Victorian Bar Association has been vocal in its criticism. In a submission to its peak body the Law Council of Australia, the Vic Bar had this to say:

“The Bar acknowledges the potential harm posed by the rapid and wide dissemination of false or otherwise harmful information online. However, the Bar is concerned that the bill’s response to that danger is insufficiently sensitive to, and protective of, freedom of expression and related privacy interests’. Further, ‘The present bill is not justifiable… and will have a chilling effect. It is also likely to be ineffective and unworkable in responding to the harms to which it is purportedly directed.”

The most recent critique has been from constitutional lawyer and academic Professor Twomey, who has not been complimentary. She has made similar points about the difficulty of implementing the bill as presently framed. Describing it as a “fiasco”, she says that a far more practical model must be arrived at or it will not be fit for purpose.

The conundrum facing us is complex and we cannot be naïve regarding present dangers. We are well aware of foreign interference in domestic elections and in seeking to influence public dialogue. The Russian government has proved to be adept at infiltrating public discourse and it seems beyond doubt that its hackers attempted to influence both the 2016 and 2020 US elections, as did the Iranians in 2020. Examples of false stories promulgated by hackers are to be found online, and the European Union has acted legislatively in an attempt to counter this disturbing trend.

All that said, whilst this type of falsity is profoundly troubling, the point being made about the current government bill before federal parliament is that it risks bundling up general public opinion expressed on social media, and subjecting it to the same type of regulation as promulgators of malign content – stifling public debate and damaging our right to freedom of expression. Democracy encourages all manner of views, a feature that ought to be strengthened, not smothered. Otherwise, in our defensive reaction to thwart autocratic states such as Russia we risk inadvertently applying the same type of unhealthy control over our freedom to speak as ironically exist in those countries that are the subject of tyranny.

At present, Australia has a voluntary code to combat misinformation and disinformation. The current bill seeks to give powers to the ACMA to force media and digital social media companies to gather and publish content that meets the definitions of misinformation and disinformation, and to force the industry to develop misinformation codes of practice and standards. It will further enable massive fines to be levelled at particularly digital social media companies for breaches of the requirements described above. If policing such requirements proves impossible for social media it is likely that it may close down all public dialogue, when in truth the majority is perfectly acceptable and only the minority is actually offensive. This would be an unfortunate outcome for a democracy such as Australia. It’s throwing the baby out with the bathwater stuff.

As the Australian Human Rights Commission has highlighted, this is about striking the right balance. The Commission however had this provocative comment to make: ‘Striking the right balance between combating misinformation or disinformation and protecting freedom of expression is a challenge with no easy answer.’

No easy answer indeed.

On balance, it would seem that one matter however is clear. That “right balance” would seem not to have been achieved by the Communications Legislation Amendment (Combating Misinformation and Disinformation) Bill. A period of public consultation about the bill closed in August. One hopes the government will now accept the potential harm of its proposed legislation outweighs its intended good. In the words of Professor Twomey, “We need to be very, very cautious the cure does not end up being worse than the disease”.

If the Australian Human Rights Commission and other respected public and industry voices are right, it will take more than a rewrite to remedy the bill’s flaws. As evil as foreign and domestic influencers may be if engaged in promulgating misinformation and disinformation for the purpose of causing harm, a worse evil still is to stifle freedom of expression: which is the bedrock of democracy.