Legislating for Mis/Disinformation - Part 1
Stopping the flow of contrarianism - An Australian Approach
This is the first part of a two-part study of the Australian Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024. Part 2 will be published tomorrow (10 October 2024 at 8:00 am)
This part starts with some observations on comments made about the Bill and its possible applicability in some form or another in New Zealand. The bulk of this first part then goes on to look at the regulator proposed for the Bill and involves a general discussion of the regulator’s powers.
The second part will examine and critique the Bill in detail.
Prologue
Not unsurprisingly Vivian Maidaborn, the CEO of InternetNZ, has expressed praise and support for Australian moves to ban children under 16 from having social media accounts and almost as an afterthought supports the Australian Government proposals to hold platforms accountable for the spread of misinformation and disinformation.
Ms Maidaborn supported the Department of Internal Affairs initiative of Safer Online Services and Media Platforms (SOSMP), was concerned when the current Government decided to discontinue that project and supports the creation of codes of practice which was a part of the SOSMP project as well as the Australian proposals.
She says:
“The Government needs to re-open that work sooner rather than later to address New Zealanders' very real concerns about safety online, particularly for children, and to keep us in line with other places we commonly align with on regulation.”
Clearly Ms Maidaborn favours increased State regulation of the Internet as a means of communication.
She says:
“It will be some time before we’ll be able to tell if the measures taken in Australia have an overall positive effect and it’s hard to see the coalition Government in this term agreeing to move forward with anything as radical, given how quickly SOSMP was scrapped.
While it’s not a priority for the Luxon Government, New Zealanders will be pleased to see that social media platforms are facing regular regulatory measures from governments who are responding to the concerns of citizens and their constituents.
With 73% of New Zealanders concerned about children accessing harmful content online, I dare say that many here would welcome the same measures.
New Zealanders need to continue to let the Government know they want them to act because, as Albanese put it, “no generation has faced this challenge before”.
But there are a couple of things that arise from Ms. Maidaborn’s op-ed.
The first thing is that it is unclear whether she is writing from her personal perspective or that of InternetNZ.
The second thing is whether she truly understands what is proposed in the Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024. The purpose of this series of articles is to set out in detail what is proposed, followed by a commentary. These articles fulfil an indication that I made a few weeks ago that I would address the Australian legislative proposal in more detail.
InternetNZ favours a free and open Internet. The Australian proposals will certainly lock aspects of the Internet down.
If what I am about the describe fulfils Ms Maidaborn’s vision, she really should be careful what she wishes for.
Introduction
Misinformation and disinformation are words that are frequently used in public discourse. They are used to shut down debate and to emphasise that there is disagreement with an orthodox view. The use of the words suggests that such disagreement should be discounted.
The reasons for this are that, in the case of misinformation, what is being put about is false and misleading (in the judgment of the orthodoxy) although there may be no intention to mislead. In the case of disinformation, what is being put about is not only false and misleading, but those putting it about intend it to mislead.
Simply put, misinformation is unsubstantiated rumour. Disinformation is lies. The problem is that there are freedom of expression issues involved in attempting to address mis/disinformation.
For example, I may have done some research and as a result of my investigations arrive at a conclusion which is expressed as an opinion. That opinion may challenge the orthodox view. It may well be that my opinion is based on incomplete investigation or a misinterpretation or lack of understanding of the evidence upon which my opinion is based. Nevertheless, I may still hold to my opinion and my conclusions. Should I be sanctioned for that or otherwise prevented from putting my view before the public.
This is where the State comes in. In many cases the State has a vested interest in the orthodox view. The orthodox view may form the basis for policy decisions or the direction in which the State wishes to travel. The expression of views contrary to the orthodox view may act as an impediment to the achievement of the goals of the State.
We saw this during the COVID-19 pandemic. The Ardern Government had particular policy goals and strategies designed to deal with the pandemic. The Prime Minister both at a press conference and in the House claimed that the Government was the single source of truth. Anything else, she said, “grain of salt”.
In addition the Department of Prime Minister and Cabinet developed Government messaging using independent but ostensibly respected organisations and experts to reinforce that view. One of the bodies funded was the Disinformation Project whose objective was to address mis/disinformation that was being circulated that was contrary to or challenged the Government view. The news media became fellow travellers in calling out contrarianism as mis/disinformation.
Ideally mis/disinformation can be the subject of critical examination or fact checking. Opinion can be identified as such. The debate can take place in public fora or on online platforms – even through the pages of a newspaper or magazine.
It is therefore unusual for a Government to take positive and legislative steps to combat mis/disinformation but the Bill currently before the Australian Parliament purports to do just that. But rather than target the perpetrators of the questionable content, the target of the legislation are the online platforms that disseminate the content.
In the past this has always been a contentious issue. Should online platforms – essentially neutral disseminators of content rather like a post office – be responsible for monitoring the material that goes through their servers, especially when that material is of a volume of terabytes and which is difficult to identify and intercept. Difficult, but not impossible.
There is a concept known as net neutrality. This is premised on the basis that internet services are essential services and internet service providers (which may include platforms) should not block, throttle or engage in the prioritization of lawful content.
In addition in the USA section 230 of the Communications Decency Act protects ISPs from liability for what their users say online.
These fundamentals of internet governance and liability are challenged by the Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024.
This Bill introduces a number of changes to the law relating to communications in Australia and expands the powers of the communications regulatory, the Australian Communications and Media Authority (the ACMA).
In this article I shall start by considering the role of the ACMA. I shall then proceed in the second part to discuss the reasons why the Bill was introduced and give an overview of what it provides. I shall then give some perspectives on the issues raised by the Bill and the problems that may arise from its enactment.
The ACMA
The Australian Communications and Media Authority (ACMA) is an essential government body responsible for regulating broadcasting, radiocommunications, telecommunications, and online content in Australia. Established under the Australian Communications and Media Authority Act 2005, ACMA ensures that Australia's media and communications landscape operates effectively and fairly.
ACMA operates under several key pieces of legislation:
• Broadcasting Services Act 1992
• Telecommunications Act 1997
• Radiocommunications Act 1992
• Australian Communications and Media Authority Act 2005
• Online Safety Act 2021
ACMA is a body corporate that operates under the Department of Infrastructure, Transport, Regional Development, Communications, and the Arts. Its establishment was the result of a merger between the Australian Broadcasting Authority (ABA) and the Australian Communications Authority (ACA) to create a single regulatory body.
Members: The Authority consists of a chair, a deputy chair, and other members, all appointed by the government. The appointment of members is determined by the Governor-General of Australia, based on recommendations from the responsible Minister. Members are appointed for a term, typically up to five years, and can be reappointed.
Executive Team: The ACMA executive is led by a chair, who oversees the agency's work, supported by the deputy chair and other senior staff members.
Advisory Committees: ACMA is also supported by advisory committees to provide specialized input on areas like spectrum management, broadcasting, and internet regulation.
Powers and Functions of ACMA
ACMA's responsibilities are wide-ranging and encompass several key areas:
Broadcasting Regulation
ACMA oversees television and radio broadcasting services to ensure they comply with established standards. This includes issuing licenses, managing the broadcasting spectrum, and enforcing content standards related to accuracy, fairness, and decency.
Radiocommunications
ACMA manages the use of the radiofrequency spectrum, a vital resource for providing wireless communication services. It allocates spectrum licenses, monitors compliance, and resolves interference issues to ensure the optimal use of this finite resource.
Telecommunications
ACMA regulates the telecommunications industry to promote competition and protect consumer interests. This involves monitoring service quality, managing numbering and network integrity, and addressing consumer complaints.
Online Content Regulation
With the rapid evolution of the internet, ACMA plays a crucial role in regulating online content. It enforces laws related to online safety, including measures to protect children from harmful content and combat cyberbullying. Additionally, ACMA administers the Interactive Gambling Act 2001, which restricts online gambling services.
Spam and Telemarketing
ACMA enforces the Spam Act 2003, designed to protect consumers from unsolicited commercial electronic messages. It also regulates telemarketing practices to ensure compliance with the Do Not Call Register Act 2006, which allows individuals to opt-out of receiving telemarketing calls.
ACMA employs a range of strategies and tools to fulfill its regulatory functions:
Licensing and Approvals
ACMA issues various licenses and approvals to media and communication service providers. This includes broadcasting licenses, spectrum licenses, and telecommunications carrier licenses. The licensing process ensures that providers meet specific requirements and operate within the regulatory framework.
Monitoring and Compliance
ACMA actively monitors the media and communications environment to ensure compliance with relevant laws and regulations. It conducts investigations, audits, and inspections to identify non-compliance and enforce corrective actions. ACMA also works closely with industry stakeholders to promote best practices and address emerging issues.
Consumer Protection
ACMA is committed to safeguarding consumer rights in the media and communications sectors. It provides information and resources to help consumers make informed choices, handles complaints, and resolves disputes. ACMA also collaborates with other regulatory bodies and organizations to enhance consumer protection efforts.
Education and Outreach
ACMA engages in public education and outreach activities to raise awareness about regulatory requirements and promote responsible media and communications practices. This includes publishing guidelines, conducting workshops, and participating in industry forums to foster understanding and compliance.
Research and Development
To stay ahead of technological advancements and industry trends, ACMA conducts research and development activities. This helps the authority anticipate future challenges, adapt regulatory approaches, and support innovation in the media and communications sectors.
In the second part I shall discuss the definitions of misinformation and disinformation and the test proposed to qualify as such and consider the role of ACMA as the regulatory body overseeing the compliance by platforms with the various duties imposed by the Bill.