Draft misinformation bill will create ‘illiberal double standard’: Victorian Bar
The Victorian Bar has objected to the exposure draft of the Australian government’s Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2023, which it says will have a “chilling effect” if enacted.
In January this year, the minister for communications announced that the Australian government would introduce new laws to provide the independent regulator, the Australian Communications and Media Authority (ACMA), with new powers to combat online misinformation and disinformation.
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The new powers will enable the ACMA to monitor efforts and require digital platforms to do more, placing Australia at the forefront in tackling harmful online misinformation and disinformation while balancing freedom of speech.
The proposed powers would enable the ACMA to gather information from digital platform providers, request the industry develop a code of practice covering measures to combat misinformation and disinformation on digital platforms, as well as allow the ACMA to create and enforce an industry standard to combat the spread of misinformation and disinformation on digital platforms.
In a recent submission to the Law Council of Australia in relation to the bill, the Victorian Bar cited “significant concerns” about the bill’s response to misinformation spread online.
“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,” the submission stated.
“This submission outlines the Bar’s concerns about the bill, commencing with a general concern that the bill’s proposed derogations of free expression are unwarranted or, at the least, premature given the availability of alternative means of protecting against false or otherwise harmful online information.”
Victorian Bar president Sam Hay KC told members it was “a particularly important” submission for the body.
“In our submission, we state that, while we acknowledge the potential harm posed by the rapid and widespread dissemination of false or otherwise harmful information online, we have significant concerns about the bill’s response to that danger. In our view, the bill is insufficiently sensitive to, and protective of, freedom of expression and related privacy interests,” he said in a statement.
“I would like to thank Gina Schoff KC, Mark Robins KC and Romauld Andrew KC for their help in pulling it together, and special thanks and acknowledgement go to James McComish and Dr Julian Murphy for their sterling contributions to the document.”
The Victorian Bar noted that the bill has the potential to interfere with freedom of expression in Australia, as well as negatively impact freedom of speech, which the Victorian Bar said was “the lifeblood of democracy”.
“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 the individual users of the relevant services (who may rationally wish to avoid any risk of being labelled a purveyor of misinformation or disinformation). Even leaving aside this effect, it is not at all clear that the bill is required. It is to be recalled that the problem of the dissemination of false information online has only relatively recently risen to prominence and has so far been relatively effectively responded to.
“The bill’s response to false information thus does not seem warranted. It may even be counter-productive when one recalls that the purveyors of so-called misinformation and disinformation are often part of relatively small online communities who are brought together by feelings of isolation and distrust of the state,” the submission stated.
“The perceived silencing or targeting of these groups is unlikely to address the underlying social problems animating the dissemination of false information. It is widely accepted in liberal democratic societies that it is better to fight information with information and to attempt to persuade rather than coerce persons to positions grounded in evidence and fact.”
In the 12-page submission, the Bar also raised concerns that the “bill creates an unlevel playing field between governments and other speakers” and creates an “illiberal double standard” that will disadvantage government critics in comparison to government supporters – and noted that the definition of misinformation is “overbroad and unworkable”.
“While the Bar acknowledges the importance of responding to false and otherwise harmful information online, such responses ought only make justifiable incursions into socially valuable freedom of expression,” the Victorian Bar stated in its submission.
“The present bill is not justifiable in this respect 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.”