Media Regulation: An MRC Research Snapshot

a 2021 report generated during the height of a global pandemic pointing to misinformation and disinformation concerns does not justify current proposals to grant australia’s media regulator excessive powers. by james mathias.

Federal media watchdog, the Australian Communications and Media Authority (ACMA) has for some years been seeking to increase its powers. The bedrock of this was its June 2021 report to Government on the adequacy of digital platforms’ news quality measures and their ability to combat disinformation. This two-year old report is cited by the current Government as the sole reason for the Communications Amendment (combatting misinformation and disinformation) Bill 2023 currently in exposure draft stage.

There are many reasons why ACMA’s 2021 report should not be relied on as a license for the bill. It relies on assumptions made during the height of COVID-19 and suggests that the Government grant ACMA the power to gain access to and potentially censor private person-to-person messages via MMS.

In its report, ACMA cites polling and research conducted during the COVID-19 pandemic that suggests the public is increasingly concerned about misinformation on the internet and that Australians are being exposed to high levels of disinformation. A report responding to the unique circumstances created during a global pandemic where public concern and scepticism was at its highest should not be the evidence used in a post-pandemic environment more than two years later.

Additionally, ACMA recommended that it be tasked by Government to produce another report before any legislation is drafted. This has not been the case.

After ACMA tabled its 2021 report, the Digital Industry Group Inc (DIGI) released its Australian Code of Practice on Disinformation and Misinformation in December 2022 with signatories Apple, Adobe, Google, Facebook, Twitter, Microsoft, Redbubble and TikTok.

The DIGI code aligns with that of the European Union Code of Practice on Disinformation. It contains seven detailed objectives and outcomes that must be adhered to by its signatories. These objectives are all-encompassing. They provide high levels of protection for consumers whilst also empowering tech companies to put in place the required levels of control to achieve the code’s objectives. Yet, ACMA believes it should be given powers above and beyond to achieve the same outcomes.

The Bill in its current form has many significant deficiencies. Firstly, it carves out content created by, or approved by Government, but leaves open the possibilities of individuals who criticise this content being questioned, forced to produce documents, and if found to be spreading disinformation/misinformation being fined.

Secondly, the definitions for misinformation and disinformation are broad and creates an environment where these broad settings are open to interpretation by an unelected public servant. It weaponises the process of individual complaints as well, where if an individual has complained to the provider (host) of the information and is unsatisfied, a complaint to ACMA would prompt an investigation. 

If the Bill were to pass in its current form, ACMA would be given free reign to change the definitions contained within the Act by simple legislative instrument. Concerningly the watchdog only has to determine whether the change would be ‘reasonable and not excessive, having regard to any circumstances the ACMA considers relevant’. Once again, a very loosely worded clause left to the interpretation of ACMA.

The penalties for a breach of these proposed laws are excessive. Up to $1.38 million for an individual found to be non-compliant with industry standards and $550,000 for non-compliance with a registered code, which is in excess of other equivalent penalties.

Under section 21 of the Act, an individual is denied the right not to incriminate themselves through the production of documents or through providing information to ACMA – a procedure that does not stand in a proper court of law.

This legislation is equivalent to what New Zealand’s former Labour Government was proposing through the establishment of an industry regulator, independent of Government, with powers to monitor what is said online and issue fines for breaches.

Many developments have taken place since ACMA first reported on this issue in 2021, such as the creation of the DIGI code and the world moving on from a global pandemic. ACMA was recommended to do another report at the end of the last financial year before any legislation was created and this hasn’t happened.

The legislation is broad in areas where it should be more specific. The outcome of this broadness is that its interpretation is left to unelected public officials. Individuals that fall foul of these interpretations are denied the procedure not to incriminate themselves through the process and then face debilitating fines if found guilty.

The powers extend to ACMA redefining disinformation and misinformation post the passage of the legislation, giving it the power to suggest changes that override the right to freedom of political communication and speech if it considers the changes ‘reasonable and not excessive’.

This bill is a half-baked power grab by an agency that has been seeking more of it since the height of the COVID-19 pandemic.