The Australian Government’s proposed new laws to crack down on
misinformation and disinformation have drawn intense criticism for their
potential to restrict free expression and political dissent, paving the
way for a digital censorship regime reminiscent of Soviet Lysenkoism.
Under the draft legislation,
the Australian Communications and Media Authority (ACMA) will gain
considerable expanded regulatory powers to “combat misinformation and
disinformation,” which ACMA says poses a “threat to the safety and
wellbeing of Australians, as well as to our democracy, society and
economy.”
Digital platforms will be required to share information with ACMA on
demand, and to implement stronger systems and processes for handling of
misinformation and disinformation.
ACMA will be empowered to devise and enforce digital codes with a
“graduated set of tools” including infringement notices, remedial
directions, injunctions and civil penalties, with fines of up to
$550,000 (individuals) and $2.75 million (corporations). Criminal
penalties, including imprisonment, may apply in extreme cases.
Controversially, the government will be exempt from the proposed
laws, as will professional news outlets, meaning that ACMA will not
compel platforms to police misinformation and disinformation
disseminated by official government or news sources.
As the government and professional news outlets have been, and
continue to be, a primary source of online misinformation and
disinformation, it is unclear that the proposed laws will meaningfully
reduce online misinformation and disinformation. Rather, the legislation
will enable the proliferation of official narratives, whether true,
false or misleading, while quashing the opportunity for dissenting
narratives to compete.
Faced with the threat of penalty, digital platforms will play it
safe. This means that for the purposes of content moderation, platforms
will treat the official position as the ‘true’ position, and
contradictory information as ‘misinformation.’
Some platforms already do this. For example, YouTube recently removed a video
of MP John Ruddick’s maiden speech to the New South Wales Parliament on
the grounds that it contained ‘medical misinformation,’ which YouTube
defines as any information that, “contradicts local health authorities’
or the World Health Organization’s (WHO) medical information about
COVID-19.”
YouTube has since expanded this policy to encompass a wider range of
“specific health conditions and substances,” though no complete list is
given as to what these specific conditions and substances are. Under
ACMA’s proposed laws, digital platforms will be compelled to take a
similar line.
This flawed logic underpins much of the current academic misinformation research, including the University of Canberra study
which informed the development of ACMA’s draft legislation. Researchers
asked respondents to agree or disagree with a range of statements
ranging from the utility of masks in preventing Covid infection and
transmission, to whether Covid vaccines are safe. Where respondents
disagreed with the official advice, they were categorised as ‘believing
misinformation,’ regardless of the contestability of the statements.
The potential for such circular definitions of misinformation and
disinformation to escalate the censorship of true information and valid
expression on digital platforms is obvious.
Free expression has traditionally been considered essential to the
functioning of liberal democratic societies, in which claims to truth
are argued out in the public square. Under ACMA’s bill, the adjudication
of what is (and is not) misinformation and disinformation will fall to
‘fact-checkers,’ AI, and other moderation tools employed by digital
platforms, all working to the better-safe-than-sorry-default of
bolstering the official position against contradictory
‘misinformation.’
But the assumption that such tools are capable of correctly
adjudicating claims to truth is misguided. ‘Fact-checkers’ routinely
make false claims and fall back on logical fallacies in lieu of parsing
evidence. In US court proceedings, ‘fact-checker’ claims are protected
under the First Amendment, confirming that the edicts of ‘fact-checkers’
are just opinion.
Recent reporting on the gaming of social media moderation tools, most
notably from the Twitter Files and the Facebook Files, shows that they
comprise a powerful apparatus for promoting false narratives and
suppressing true information, with significant real-world impacts. Take
the Russia collusion hoax, which was seeded by think tanks and
propagated by social media platforms and news media. The suppression of
the Hunter Biden laptop scandal is thought to have swung the 2020 US
election outcome.
ACMA seeks to curtail expression under the proposition that
misinformation and disinformation can cause ‘harm,’ but the scope is
extraordinarily broad. A shopping list of potential harms includes:
identity-based hatred; disruption of public order or society; harm to
democratic processes; harm to government institutions; harm to the
health of Australians; harm to the environment; economic or financial
harm to Australians or to the economy.
The overly broad and vague definitions offered in the bill for
‘misinformation,’ ‘disinformation,’ and ‘serious harm’ makes enforcement
of the proposed laws inherently subjective and likely to result in a
litany of court cases – to the benefit of lawyers and the
institutionally powerful, but to the detriment of everyone else.
Moreover, the definition of ‘disrupting public order’ as a serious
and chronic harm could be used to prevent legitimate protest, a
necessary steam valve in a functioning democracy.
ACMA says that the proposed laws aren’t intended to infringe on the
right to protest, yet the erosion of protest rights during Covid
lockdowns proves that politicians and bureaucrats are prone to take
great latitude where the law allows it. The right to protest was
effectively suspended in some states, with Victorian police using
unprecedented violence and issuing charges of incitement to deter
protestors.
In the US, the involvement of the Cybersecurity and Infrastructure
Security Agency (CISA) in censoring online speech and, in particular,
its framing of public opinion as ‘cognitive infrastructure’ demonstrates
how even policies designed to combat ‘threats to infrastructure’ can be
subverted as a means clamp down on ‘wrong-think.’
n the past, extreme censorship has led to mass casualty events, such
as the Soviet famine of the 1930s brought on by Lysenkoism. Biologist
Trofim Lysenko’s unscientific agrarian policies were treated as gospel
by Stalin’s censorious Communist regime. It was reported that thousands
of dissenting scientists were dismissed, imprisoned, or executed for
their efforts to challenge Lysenko’s policies. Up to 10 million lives
were lost in the resultant famine – lives that could have been saved had
the regime allowed the expression of viewpoints counter to the official
position.
History tells us that censorship regimes never end well, though it
may take a generation for the deadliest consequences to play out. The
draft legislation is now under review following a period of public
consultation. Hopefully, the Australian Government will take the
historical lesson and steer Australia off this treacherous path.
Rebekah Barnett reports from Western Australia. She is a volunteer
interviewer for Jab Injuries Australia and holds a BA in Communications
from the University of Western Australia. Find her work on her Substack
page, Dystopian Down Under.
