On 20 January 2023, the Australian Government announced that it would be implementing new legislation to combat the spread of misinformation and disinformation online.
The Australian Government subsequently released the draft Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2023 (Draft Bill) for public consultation in June this year. The Draft Bill is based on recommendations previously provided by the Australian Communications and Media Authority (ACMA) in June 2021. For a detailed overview of these recommendations, please click here to see our previous article.
Under the proposed reforms, the ACMA would be provided with powers aimed at minimising and preventing harmful misinformation and disinformation on digital platforms. The powers will, amongst other things, allow the ACMA to act in circumstances where it considers that a digital service provider does not have adequate measures in place for minimising and preventing misinformation and disinformation online.
What is a ‘digital platform service’?
Under the Draft Bill, a digital platform service (to whom the proposed legislation will apply) is broadly defined as one that is at least one of the following:
- a content aggregation service (ie collates and presents content from a range of online sources);
- a connective media service (ie enables online interaction between two or more end-users);
- a media sharing service (ie provides audio-visual or moving visual content to end-users); or
- any other digital service specified by the Minister.
As a result, the legislation will likely apply to a broad range of digital platform services, and may include (but is not limited to):
- social media services;
- search engines;
- instant messaging services (although the content of private messages will be out of scope);
- news aggregators; and
- podcasting services.
Interestingly, this does not extend to “broadcasting services” (ie traditional media). This poses some potential difficulties for relevant entities to manage their content. Based on the current scope of the Draft Bill, if a ‘digital platform provider’ shared content from a broadcaster, it would be responsible for identifying whether that content is “excluded content for record keeping purposes.” They are also then likely responsible for determining whether that information is caught by the Draft Bill.
What kind of information is caught by the Draft Bill?
The Draft Bill proposes to capture information 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.
Both definitions require that the relevant information is reasonably expected to result in or contribute to ‘serious harm’. The crucial differentiation between “misinformation” and “disinformation” lies in the existence of an intent to deceive. Practically, it is likely to pose a challenge for a digital platform provider (or any organisation) to distinguish between misinformation and disinformation based only on a record in a digital platform.
The Australian Government has provided some examples of what could constitute ‘serious harm’, which include:
- misinformation about a group of Australians inciting other persons to commit hate crimes against that group;
- misinformation that encouraged or caused people to vandalise critical communications infrastructure;
- misinformation undermining the impartiality of an Australian electoral management body ahead of an election or a referendum;
- misinformation that caused people to ingest or inject bleach products to treat a viral infection;
- misinformation about water saving measures during a prolonged drought period in a major town or city; or
- disinformation by a foreign actor targeting local producers in favour of imported goods.
What powers does the Draft Bill propose to grant ACMA?
Under the Draft Bill, the ACMA would have the power to step in where a digital platform provider’s self-regulation is inadequate, or where the provider fails to remedy the growing trend of misinformation and disinformation.
The proposed powers include:
- the power to make rules requiring digital platforms to maintain and keep certain records;
- the power to gather information from, or require digital platforms to keep records about, certain matters;
- the power to request industry to develop a code of practice covering measures to combat misinformation and disinformation on digital platforms, which the ACMA could register and enforce; and
- the power to create and enforce an industry standard, should a code of practice be deemed ineffective in combatting misinformation and disinformation on digital platforms.
The Draft Bill also requires the ACMA to be satisfied that a code or standard does not unreasonably burden freedom of political expression. In assessing whether there is a burden on political expression, the ACMA can consider “any circumstances the ACMA considers relevant”.
Notably, the Draft Bill does not provide the ACMA with powers to:
- request specific content or posts be removed from digital platform services;
- determine what is true or false;
- use its information-gathering powers to require a person to give information or evidence, or produce a document that would reveal the contents of private messages between users;
- create record-keeping rules that require digital platform providers to make or retain records of the contents of private messages; or
- enforce misinformation codes and/or standards which require platforms to break encryption or to monitor private messages.
The Draft Bill does not apply to professional news content or authorised electoral content.
What are the proposed penalties for non-compliance?
If a digital platform does not comply with the information-gathering and record-keeping rules, codes or standards, 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:
- for a corporation, the greater of:
- 10,000 penalty units ($2.75 million in 2023); or
- 2% of global turnover;
- for an individual, 2,000 penalty units ($0.55 million in 2023).
The maximum penalty for non-compliance with an industry standard:
- for a corporation, the greater of:
- 25,000 penalty units ($6.88 million in 2023); or
- 5% of global turnover (whichever is greater);
- for an individual, 5,000 penalty units ($1.38 million in 2023).
Next steps
Public consultation closed in August 2023. The Government is currently reviewing submissions, which are being released in tranches via the following webpage (click here). It is expected that around 2,500 submissions in total will be published.
The department will indicate in the final tranche when all public submissions have been published.
It is evident that, if the Draft Bill proceeds in its current form, it would have the effect of introducing a number of compliance issues for digital platform providers and other businesses. We will continue to monitor the progress of the Bill and provide further updates.
If you have any concerns or questions about how the Draft Bill may impact your business, please reach out to our team.
This article was written by Peter Campbell, Partner, Alexandra Douvartzidis, Senior Associate, and Simone Basso, Solicitor.
