Did you know that between January 2020 and June 2021, over 82% of Australians reported having experienced misinformation about COVID-19? Of these, 22% of Australians report experiencing ‘a lot’ or ‘a great deal’ of misinformation online. The Australian Communications and Media Authority (ACMA) (Australia’s media regulator) reported that belief in falsehoods or unproven claims appears to be related to high exposure to online misinformation and a lack of trust in news outlets or authoritative sources.1
On 20 January 2023, the Australian Government announced that the ACMA would be provided with new powers in an effort to minimise and prevent harmful misinformation and disinformation on digital platforms.2
In its media release, Minister for Communications Michelle Rowland, announced that:
“Misinformation and disinformation poses a threat to the safety and wellbeing of Australians, as well as to our democracy, society and economy” and that “[a] new and graduated set of powers will enable the ACMA to monitor efforts and compel digital platforms to do more, placing Australia at the forefront in tackling harmful online misinformation and disinformation.”
Under the proposed legislation, the ACMA will be given the following powers:
- formal information-gathering powers (including powers to make record keeping rules) to oversee digital platforms (for the purposes of incentivising greater transparency), including the ability to request certain data on the effectiveness of measures to address disinformation and misinformation; and
- powers to register an enforceable industry code and a standard (should industry self-regulation measures prove insufficient in addressing the threat posed by misinformation and disinformation). This graduated set of powers includes measures to protect Australians, such as stronger tools to empower users to identify and report relevant cases.
How did we get here?
In December 2019, the Australian Government requested that major digital platforms in Australia develop a voluntary code of practice to address online disinformation and new quality. The ACMA was tasked with overseeing the development of this code and reporting on platforms’ measures and the broader impacts of disinformation in Australia.
On June 2021, the ACMA provided its report to the Government on the adequacy of digital platforms’ disinformation and news quality measures. ACMA’s report proposed five recommendations, being:
Recommendation 1: The government should encourage DIGI to consider the findings in this report when reviewing the code in February 2022.
Recommendation 2: The ACMA will continue to oversee the operation of the code and should report to government on its effectiveness no later than the end of the 2022-23 financial year. The ACMA should also continue to undertake relevant research to inform government on the state of disinformation and misinformation in Australia.
Recommendation 3: To incentivise greater transparency, the ACMA should be provided with formal information-gathering powers (including powers to make record keeping rules) to oversee digital platforms, including the ability to request Australia specific data on the effectiveness of measures to address disinformation and misinformation.
Recommendation 4: The government should provide the ACMA with reserve powers to register industry codes, enforce industry code compliance, and make standards relating to the activities of digital platforms’ corporations. These powers would provide a mechanism for further intervention if code administration arrangements prove inadequate, or the voluntary industry code fails.
Recommendation 5: In addition to existing monitoring capabilities, the government should consider establishing a Misinformation and Disinformation Action Group to support collaboration and information-sharing between digital platforms, government agencies, researchers and NGOs on issues relating to disinformation and misinformation.
ACMA’s proposed new powers are consistent with these recommendations.
The proposed legislation also intends to bolster and support the voluntary code of practice relating to disinformation and misinformation (the Code),3 which was launched in February 2021 by industry association Digital Industry Group Inc (DIGI).4 The Code’s purpose is to reduce the risk of online misinformation causing harm to Australians, whilst also ensuring that companies have in place adequate safeguards and measures which protect Australians against harm from online disinformation and misinformation. In March 2022, DIGI gave in principle support to the ACMA’s recommendations to establish the new powers, which DIGI reiterated with the release of a revised Code in December 2022.5
Since its launch, the Code has been adopted by eight companies, being Adobe, Apple, Facebook, Google, Microsoft, Redbubble, TikTok and Twitter.
What is the impact of these changes?
Under the proposed laws, the ACMA will have the power to request information from major digital platforms such as Meta, Google and Twitter, which in turn will:
- encourage digital platforms to strengthen their own safeguards by maintaining, and improving where possible, their processes in respect of misinformation and disinformation management; and
- assist the ACMA in minimising and preventing the spread of harmful content on digital platforms in Australia.
The powers will not only apply to signatories of the Code but will also extend to non-signatories.
The Government has indicated that it will undertake public consultation through the release of the exposure draft Bill in the first half of 2023. It is anticipated that the legislation will be introduced later in 2023.
An update will be provided following the Government’s introduction of the draft Bill.
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.
1 Australian Communications and Media Authority, A report to government on the adequacy of digital platforms’ disinformation and news quality measures (Report, June 2021) 1.
2 Hon Michelle Rowland MP, ‘New ACMA powers to combat harmful online misinformation and disinformation’ (Media Release, 20 January 2023) <https://minister.infrastructure.gov.au/rowland/media-release/new-acma-powers-combat-harmful-online-misinformation-and-disinformation>.
3 DIGI, Australian Code of Practice on Disinformation and Misinformation (Code of Practice, February 2021).
4DIGI is an industry association which provides as a uniting platform for large Australian technology companies, and advocates for policies on issues of shared public policy interest. See ‘About DIGI’, DIGI (Webpage) <http://digi.org.au/about/>.
5 DIGI, Australian Code of Practice on Disinformation and Misinformation (Code of Practice, 22 December 2022).