On 12 September 2024, the Australian Government introduced the Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 (Draft Bill) into parliament. This follows the release of an exposure bill in June 2023.
The introduction of these new laws has been anticipated for some time, with the Australian Government taking steps to enquire as to the adequacy of the laws regulating misinformation and disinformation since around 2019. In particular, the Government has been foreshadowing a legislative reform in this area since around 2023. As stated by the Minister for Communications, the Hon Michelle Rowland MP:
“Misinformation and disinformation pose a serious threat to the safety and wellbeing of Australians, as well as to our democracy, society and economy. Doing nothing and allowing this problem to fester is not an option.”
As was the case with the Exposure Bill, the Draft Bill aims to reduce the spread of harmful misinformation and disinformation via online communication platforms by providing powers to the ACMA to gather and request information as well as create and enforce an industry standard. We have published a previous article on these powers as they formed part of the Exposure Bill, which you can view here.
In addition to those powers, the Draft Bill also places new core transparency obligations on digital platforms. We discuss this in further detail below.
How did we get here?
Following the release of Exposure Bill, the Department of Infrastructure, Transport, Regional Development, Communications and the Arts undertook two phases of public and targeted consultation over 2023 and 2024.
Based on the common themes and issues which arose out of that consultation process, the Department identified three approaches to resolve those issues. These options were as follows:
- Option 1: Maintain the status quo, where ACMA would continue to provide informal oversight of the voluntary Australian Code of Practice on Disinformation and Misinformation established by the Digital Industry Group Inc (DIGI Code). It would have no regulatory powers to enforce non-compliance with the voluntary code, nor would it have any information powers;
- Option 2: Provide ACMA with information gathering, code registration and standard making powers (as per the 2023 Draft Bill). These powers are summarised in our previous article which can be accessed via the above link; or
- Option 3: Provide ACMA with the powers provided under Option 2 plus new core transparency obligations on platforms.
Options 2 and 3 would result in a legislative change that would apply to all digital communications platform providers that offer services in Australia who are not otherwise excluded by legislative instruments under the Draft Bill.
What are the proposed changes?
The Draft Bill has been based on Option 3, following the Impact Analysis paper published by the Department in September 2024.
As proposed in the 2023 Draft Bill, the current Draft Bill focuses on information which is categorised as “misinformation” and “disinformation”.
The Draft Bill defines misinformation and disinformation as follows:
- Misinformation is online content that is false, misleading or deceptive, that is shared or created without an intent to deceive but can cause and contribute to serious harm.
- Disinformation is misinformation that is intentionally disseminated with the intent to deceive or cause serious harm.
To satisfy the ‘serious harm’ threshold, there must be significant and far-reaching consequences for the Australian community or a segment of the Australian community or severe consequences for an individual in Australia.
The Bill identifies six categories of harm:
- election interference;
- harming public health, including preventative health measures;
- vilification of individuals or groups with certain characteristics;
- intentionally physically injuring an individual;
- imminent damage to critical infrastructure or disruption to emergency services; and
- imminent harm to the Australian economy.
The Draft Bill will amend the Broadcasting Services Act 1992 (and related legislation) to increase the transparency and accountability of digital communications platforms. This includes providing ACMA with powers to gather information, make record keeping rules, and if required, regulate the digital communications platform industry with regards to misinformation and disinformation.
In addition to those powers, the Draft Bill requires digital platforms to publish:
- their policies on misinformation and disinformation,
- reports on the outcomes of their risk assessments,
- their media literacy plans, and
- if ACMA has created digital platform rules on complaints handling and dispute resolution – information on how their processes work, the number of complaints received and disputes, and how they have responded to them.
These policies would need to demonstrate that the platform has in place a plan to mitigate any identified risk relating to misinformation and disinformation on their services. The media literacy plans would need to demonstrate to ACMA that the platform has a plan to assist their Australian users to better identify misinformation and disinformation on the platform, including to enable end-users to identify the source of content disseminated on the platform.
What are the proposed penalties for non-compliance?
The potential penalties for non-compliance with the information-gathering and record-keeping rules, codes or standards remain the same as outlined in our previous article. That is, the ACMA may:
- issue formal warnings;
- issue infringement notices;
- enforce remedial directions;
- seek injunctions from the Court; and/or
- impose civil penalties.
The maximum penalty for non-compliance with a registered code is 10,000 penalty units ($3.13 million in 2024) or 2 per cent of global turnover (whichever is greater) for corporations or 2,000 penalty units ($626,000 in 2024) for individuals.
The maximum penalty for non-compliance with an industry standard is 25,000 penalty units ($7.825 million in 2024) or 5 per cent of global turnover (whichever is greater) for corporations or 5,000 penalty units ($1.565 million in 2023) for individuals.
Next steps
On 19 September 2024, the Senate referred the provisions of the Draft Bill to the Environment and Communications Legislation Committee for report by 25 November 2024.
However, some doubts have been raised whether the Draft Bill will operate in a manner which is compatible with Australia’s international human rights obligations related to freedom of expression. Both the Senate Scrutiny of Bills Committee and the Parliamentary Joint Committee on Human Rights have raised concerns with the Draft Bill.
We will continue to monitor the progress of the Draft Bill and provide further updates.
Please reach out to our team if you have any concerns or questions about how the Draft Bill may impact your business.
This article was written by Peter Campbell, Partner, Alexandra Douvartzidis, Senior Associate and Simone Basso, Associate.
