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The government’s proposed ‘misinformation bill’ is currently up for public feedback. The Canberra Declaration strongly urges people to write in with their concerns about the bill, which can be done here.

Why is the bill so concerning?

Recently the Hon Kevin Andrews, former Federal MP, informed the Canberra Declaration about the proposed ‘misinformation and disinformation’ bill. His expertise and ability to explain the serious shortcomings of the proposal are immensely helpful. You can watch the full webinar below (Kevin begins at 23:05).

Defining ‘Misinformation’

According to the proposed bill, something is defined as misinformation if “the provision of the content on the digital service is reasonably likely to cause or contribute to serious harm.”

Already the vagueness of the language is concerning. How will “reasonably likely” be determined? And what does “contribute to” mean? Surely this means that no harm actually needs to be committed – all that is required is something “likely” to “contribute to” serious harm. Further, who defines “serious” harm, as opposed to minimal or moderate harm?

Nothing in the proposed bill speaks to these vital questions.

Six Examples of Serious Harm

The Bill sets out six areas of ‘harm’ and a government department ‘fact sheet’ gives six examples of “serious harm”.

Type of Harm	Example of Serious Harm
A. Hatred against a group in Australian society on the basis of ethnicity, nationality, race, gender, sexual orientation, age, religion or physical or mental disability _____________________________	Misinformation about a group of Australians inciting other persons to commit hate crimes against that group _____________________________
B. Disruption of public order or society in Australia _____________________________	Misinformation that encouraged or caused people to vandalise critical communications infrastructure _____________________________
C. Harm to the integrity of Australian democratic processes or of Commonwealth, State, Territory or local government institutions _____________________________	Misinformation undermining the impartiality of an Australian electoral management body ahead of an election or a referendum _____________________________
D. Harm to the health of Australians _____________________________	Misinformation that caused people to ingest or inject bleach products to treat a viral infection _____________________________
E. Harm to the Australian environment _____________________________	Misinformation about water-saving measures during a prolonged drought period in a major town or city _____________________________
F. Economic or financial harm to Australians, the Australian economy or a sector of the Australian economy_____________________________	Disinformation by a foreign actor targeting local producers in favour of imported goods _____________________________

Scrutinising These Six Areas

The examples given in the government department ‘fact sheet’ deserve close scrutiny. How do they hold up?

1. Hatred against a group in Australian society on the basis of ethnicity, nationality, race, gender, sexual orientation, age, religion or physical or mental disability

The example given is committing or inciting hate crimes against a group. But incitement to commit a hate crime is already subject to criminal law. We don’t need a new code for digital platforms for which Australian law exists and law enforcement is already responsible.

2. Disruption of public order or society in Australia

The example given is the vandalism of (or the threat or incitement to vandalise) infrastructure. But once again, vandalism is a specific criminal act that is already accounted for under the law. A ‘misinformation bill’ with a vague category of the “Disruption of public order or society in Australia” is not required to deal with vandalism.

3. Harm to the integrity of Australian democratic processes or of Commonwealth, State, Territory or local government institutions

There are already laws that relate to electoral offences in Australia. Once again, the example given is covered by existing legislation. If there are gaps in our existing laws, then they should be filled with proper legislation passed by the government. We need the laws of Australia to protect the integrity of electoral processes, not threats to fine Mark Zuckerberg or Elon Musk.

4. Harm to the health of Australians

The example here refers to the use of drinking bleach to cure COVID-19 – a not-so-subtle dig at President Donald Trump. (By the way, Trump never said this). If there is a specific drug or substance that is dangerous to people, then the best way for this to be dealt with would be by making a provision under the health laws of Australia. Products must carry warning labels (in the case of bleach, including warnings about the dangers of ingestion). If penalties are to be applied for claims to disregard these warnings, then they should be made under Australia’s health laws so that they apply regardless of where the claim is made – on digital media or elsewhere.

5. Harm to the Australian environment

It’s difficult to know what kind of misinformation about “water saving measures during a prolonged drought period” the department imagines. Whatever the case, Australian law already covers the use of water. Once again, incitement to commit a specific offence is covered under the criminal code.

6. Economic or financial harm to Australians, the Australian economy or a sector of the Australian economy

Here we could picture a situation where a foreign company claims a certain Australian product is dangerous, motivated by a desire to sell its imported products in their place.

In such a case, the best way of responding would be through a specific agricultural, foreign interference or criminal law in Australia.

How could every digital platform determine in each individual situation which products are deemed safe in Australia and which are not? It’s an absurd proposition that companies in tech companies in Silicon Valley, California be across such legal provisions.

The government departments of agriculture and foreign affairs are the ones responsible to protect Australia’s national interests, not Big Tech.

‘Harm’ to Freedom of Speech: Three Examples

While the government is adamant the proposed law will not hinder free speech, the three examples provided below reveal free speech will indeed suffer.

1. Transgender athletes in sports

Someone could claim the idea that women’s sports should be restricted to biological women will cause harm to biological men who identify as women. ‘After all’, it would be reasoned, ‘the lives of transgender athletes will be at risk of serious psychological harm if they are not fully affirmed in their gender identity’.

Digital platforms would automatically censor anything that questioned the current transgender zeitgeist.

Of course, such situations have already occurred. Contesting the issue can even get you kicked out of the Victorian Liberal Party parliamentary room – just ask Moira Deeming.

2. COVID-19 vaccines and transmission

The claim that COVID-19 vaccines don’t prevent infection and transmission of the virus could be labelled ‘misinformation’ under the proposed bill. ‘After all’, it would be reasoned, ‘such claims could lead to vaccine hesitancy, putting lives at risk of serious harm’.

Digital platforms would automatically censor these claims.

Oh wait, that already happened.

The awkward fact is that the so-called ‘misinformation’ was true. Ironically, the claim that vaccines stop infection and transmission was itself misinformation. It could lead to vaccinated people who thought it was impossible to be infected taking less precautions for their own health and the health of others — in other words, leading to harm to themselves and others.

Mark Zuckerberg even admitted he presided over the censorship of information that was true.

If you’re privileged enough to be in government, however, you’re excluded from the proposed ‘misinformation law’ and can rest easy.

3. Climate change

Someone could claim that information promoting fossil fuels as a more reliable source of energy is harmful to the Australian environment. ‘After all’, it would be reasoned, ‘fossil fuels are increasing CO2 in the atmosphere, which is causing our current climate catastrophe.’

Or perhaps it wouldn’t be said quite so politely:

Digital platforms would automatically censor anything that questioned the official climate line.

Say goodbye to legitimate debate over an imprecise science that keeps making failed predictions. Censorship is harmful to proper scientific debate.

Let’s say, for argument’s sake, that the warming the planet is experiencing is not a cause for alarm. Energy prices are soaring across the country, spurring inflation and causing the country economic harm. And if you can’t afford to heat your home in winter, this is harmful to your health.

In that case, a law attempting to prevent harm would in fact entrench it.

The Bottom Line

All six examples used in the government’s guidance sheet are already subject to existing laws. The ‘offence of incitement’ applies whether it occurs on a digital platform or whilst walking down the street.

If there are instances where real harm needs to be addressed, it should be made subject to a specific criminal, health, foreign affairs or environmental law in Australia.

We elect our representatives to pass carefully-defined legislation. We don’t need help from Facebook staff.

The practical outcome of the proposed law is obvious. Media companies simply cannot moderate every post that people make. Algorithms will be written, based on what the government of the day wants, that will censor content automatically.

At the risk of being fined, the algorithms will err on the side of caution.

Australian law covers illegal actions, making the bill redundant and unnecessary.

But the bill would prevent legitimate freedom of speech, making it dangerous.

Yes, it will do serious harm.

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Photo by Solen Feyissa.