Critics Warn New Bill Will Create 2-Tiers of ‘Misinformation’ Scrutiny

In this photo illustration, the TikTok app is seen on a phone in New York City on March 13, 2024. Michael M. Santiago/Getty Images

Australia’s proposed Misinformation and Disinformation Bill has ignited debate during a Senate Committee hearing on Oct. 11, with multiple stakeholders raising concerns about transparency, fairness, and potential overreach.

The bill, designed to combat harmful misinformation on digital platforms, has prompted questions about censorship, the role of fact-checkers, and whether it unfairly targets certain sectors of the media.

Critics, including community broadcasters and the Institute of Public Affairs (IPA), say the bill could create a two-tiered system with media outlets facing less scrutiny than average citizens.

The IPA tabled a survey conducted from May 17 to 19 of 1,017 individuals, where half of the respondents felt open debate and freedom of speech was the best way to counter misinformation.

Specifically, 49 percent supported increased debate or freedom of speech, while only 39 percent backed government or social media company censorship.

Interestingly, younger Australians, aged 18 to 24, showed the strongest support for free speech, with only 8 percent favouring government censorship and just 17 percent supporting censorship by social media companies.

A significant 59 percent of this age group believed that more debate and free speech was effective to deal with misinformation.

“These findings suggest that many Australians, particularly younger generations, reject censorship as a solution and see open dialogue as the key to tackling false information, indicating a broad public preference for free expression over restrictive measures,” said IPA.

A 2-Tiered System of Misinformation

The proposed legislation has been criticised for potentially establishing a two-tiered system where professional media organisations face fewer consequences for publishing false information than everyday citizens.

The IPA, represented by Deputy Executive Director Daniel Wild, argued that the bill’s exemptions for certain media outlets created an imbalance.

“If misinformation is considered to be a problem, why does the source of it matter?” Wild asked during the inquiry.

He emphasised that any laws aimed at curbing misinformation should apply equally to all individuals and organisations.

Larina Alick, lawyer for Nine Entertainment, also said media outlets should not be subject to the same level of scrutiny as social media platforms, arguing that professionally produced content adhered to editorial standards, unlike the unchecked information often found on user-generated platforms.

Additionally, critics questioned the bill’s reliance on industry-drafted codes, arguing that these measures could undermine public scrutiny and transparency.

The Misinformation Bill relies on the following mechanism. Rather than the Australian Communications and Media Authority (ACMA) directly controlling what social media outlets can publish, the companies, will instead, create industry codes of conduct that they all need to follow.

ACMA will oversee this code being enforced, and if it is not satisfied, will create its own code.

ACMA currently does have the power, under the Broadcasting Services Act, to investigate individuals suspected of spreading misinformation.

Fact-Checking and Potential Biases

One of the more contentious aspects of the bill is its reliance on fact-checking organisations, which critics claim are biased and lack transparency.

The IPA presented its analysis of 187 fact-checking articles related to the recent Voice referendum, revealing that 91 percent of the assessed claims targeted opponents of the proposal, while only 9 percent scrutinised its proponents.

“These fact-checking organisations have proved themselves to be undertaking heavily politically biased activities,” Wild stated, warning that empowering such organisations under the new law could further stifle public debate.

‘Censor First, Ask Questions Later’

A key concern raised by multiple stakeholders was the bill’s provision for heavy penalties, which could compel social media companies to over-censor to play safe and avoid infringing on the law.

Alice Dawkins, executive director of Reset Tech Australia, noted that tech companies like Meta have become less transparent about how they tackle misinformation, which complicates regulatory efforts.

She emphasised the need for platforms to provide more data to regulators and researchers, so that misinformation trends can be properly monitored.

The bill’s lack of clarity regarding what constitutes “harmful content” has also drawn criticism.

Regulating Non-Human Actors and Bots

The issue of regulating bots and other non-human actors in the digital space remains a challenge.

Bots contribute significantly to the spread of misinformation, and while the bill aims to address this, questions persist about whether ACMA and digital platforms have the capacity to regulate such activity effectively.

Dawkins outlined concerns about ACMA’s ability to gather and analyse data on bot activity from tech companies, questioning whether stricter regulations are needed.

Fears of Regulatory Burden for Community Media

Another contentious issue raised during the inquiry was the potential double regulation of community broadcasters.

Reece Kinnane, head of advocacy for the Community Broadcasting Association of Australia (CBAA), highlighted the lack of clear exemptions for community broadcasters under the Broadcasting Services Act (BSA).

He argued that community broadcasters, already regulated by the ACMA, should not be subject to additional scrutiny.

Kinnane pointed out that over 500 community radio and television stations, representing Indigenous, ethnic, and regional broadcasters, play a vital role in delivering local news.

However, the bill could expose these broadcasters to penalties for misinformation, despite their existing oversight by ACMA.

“There’s no understanding for why that would be,” Kinnane said, expressing concern that the bill could allow digital platforms to regulate content that is already regulated.

He urged the Senate to ensure the bill does not place community broadcasters at a disadvantage compared to larger media outlets.