TO: Committee Secretary
Senate Standing Committees on Environment and Communications
PO Box 6100
Parliament House
Canberra ACT 2600
FROM:
Dr Russell Blackford
Submission re the Communications Legislation Amendment
(Combatting Misinformation and Disinformation) Bill 2024
Introduction
1.
First, I am grateful that there is an opportunity to comment on the Communications Legislation Amendment (Combatting Misinformation and
Disinformation) Bill 2024 (“the Bill”) before it is voted into law.
However, I am concerned at the short time that has been made available for
public consultation on a complex proposal of over 70 pages with serious
implications for freedom of speech and technological innovation in Australia
and beyond.
2.
I am an academic philosopher with a special interest in legal and political
philosophy, including issues relating to liberal theory, secular government,
and traditional civil and political liberties such as freedom of speech. My
formal qualifications include an LLB with First Class Honours from the
University of Melbourne, a Masters degree in bioethics from Monash University,
and a PhD in philosophy, also from Monash University, where my doctoral
dissertation applied ideas from liberal theory and philosophy of law to certain
topical issues in bioethics. I am admitted to legal practice as a barrister and
solicitor of the Supreme Court of Victoria, and in the past I have practised
with a major commercial law firm in Melbourne.
3.
I am the author of numerous books including Freedom of Religion and the
Secular State (Wiley-Blackwell, 2012), Humanity Enhanced: Genetic
Choice and the Challenge for Liberal Democracies (MIT Press, 2014), The
Tyranny of Opinion: Conformity and the Future of Liberalism (Bloomsbury
Academic, 2019), and How We Became Post-Liberal: The Rise and Fall of
Toleration (Bloomsbury Academic, 2024).
4.
Although I have retired from paid employment, I remain active in research and
publishing at the intersection of philosophy, law, and public policy. I hold an
honorary position as Conjoint Senior Lecturer in Philosophy at the University
of Newcastle. I do not, of course, purport to represent the views of the
university in any way.
Inadequacy
of consultation to date
5.
I take a broad view of the law, and of its history, justifications, and
purposes. In this instance, however, I am most concerned by the complexity of
the system of regulation set out in the Bill and by the scheme and wording of
the Bill itself, which defy interpretation and would inevitably create
confusion if their meaning were tested in the courts. Even the simplified
outline provided in the Bill’s opening pages shows that a complex and
burdensome regulatory system has been devised.
6.
Given this legal and administrative complexity, it would have been advisable to
establish a process for extensive consultation with stakeholders and the
general public brefore reaching this point. On 19 September 2024, the Bill was
referred to the Environment and Communications Legislation Committee, which
does allow an opportunity for public submissions. However, the deadline is
remarkably short, since submissions close on 30 September 2024. With all
respect, this is a manifestly inadequate time for members of the public to study
and try to understand the scheme of the Bill and to consider its merits. At the
very least, I submit, a more extensive period should now be made available for
proper consultation with interested members of the public.
A
hindrance to public discussion and technological innovation
7.
Meanwhile, whatever the subjective intentions behind it, the Bill appears to
show hostility to digital communications platforms (“digital platforms”).
Indeed, the provisions of the Bill seem almost punitive. The requirements are
so detailed and burdensome, with so many points where misunderstandings of its
intent could arise (and with so many civil penalty provisions at every stage of
its processes), that the overall regulatory policy seems to be to treat digital
platforms as inherently dangerous and to attempt to hinder their operation in
Australia. Moreover, even if very large platforms find the resources to comply,
it is difficult to imagine smaller players entering an industry that is governed
by such a regulatory system. The likely effect of the Bill will be to restrict
public discussion and disincentivise technological innovation.
8.
This should be understood against a background where the emergence of digital
platforms has brought significant benefits along with some downsides. In
particular, the emergence of these platforms has enabled a remarkable expansion
of the sphere of public discussion comparable to the emergence of a
recognisable public sphere in eighteenth-century Europe or even to the invention
of the printing press in the fifteenth century. Digital platforms have provided
opportunities for public discussion that were previously available only to a
much more restricted group (e.g. politicians, academics, professional
broadcasters and journalists, and celebrities of various kinds). The Bill gives
no sense that digital platforms have, in fact, brought democratic benefits.
Instead, it pervasively insinuates that they are a menace to the welfare and
safety of Australians. It creates a cumulative impression that these platforms ought
to be viewed with suspicion and subjected to a harsh level of control.
9.
The extensive new powers granted by the Bill to the Australian Communications
and Media Authority (“ACMA”) would make it, in effect, an Orwellian Ministry of
Truth, involved in detailed regulation of what can or cannot be said in public
discussion. The Bill grants ACMA a power to write codes binding upon particular
digital communications providers where it is not satisfied with their own respective
codes. This makes it a powerful arbiter of the boundaries of truth and falsity.
That is a frightening power to grant to any administrative agency. The Minister
is also given an extraordinary power to decide matters to be taken into account
in determining whether speech is reasonably likely to cause or contribute to
serious harm. Again, this is a frightening power to hand to a member of the
executive government.
10.
I do not suggest that these new powers would be wielded in bad faith or necessarily
in an authoritarian spirit. They would, however, inevitably be wielded with
biases reflecting the ideologies of current and future governments and the
internal culture, as it manifests over time, of ACMA.
11.
A recurrent problem with all statutes in Australia that seek to narrow the
boundaries of free discussion is that they tend to restrict speech using sweeping
statutory language while offering some defences or exemptions that are also cast
in broad language. The outcome is that it’s unclear exactly what speech is intended
to be proscribed and what speech remains free. This undermines the rule of law,
since it is not knowable in advance just what legal obligations the law imposes:
the law ends up meaning whatever the courts say it means after deciding how
narrowly or expansively to read various items of terminology in the respective statutes.
12.
Where laws restricting speech are unclear, some individuals and organisations
might seek to test their boundaries. The majority, however, will respond in a
risk-averse manner to avoid possible prosecution or civil litigation, and their
legal advisors are likely to press on them exactly that approach. There might even
be some circumstances where that seems like a good outcome, but this situation
is not one of them. In this case, the effect will be that (most) digital
platforms will adopt a risk-averse approach to interpreting the law, with the
result that they will develop overly restrictive codes for their own protection
– and this, in turn, will chill public discussion and freedom of online speech
in Australia.
The
core intention of parliament
13.
I do understand that false information spread maliciously online can cause very
serious harms to individuals, or in some cases to an entire society’s economy
and/or its social and physical infrastructure. I am not opposed to the core intention
of the parliament to attempt to restrict this.
14.
Nor am I entirely out of sympathy with the definition of serious harm in
section 14 of the proposed Schedule 9 to the Broadcasting Services Act 1992.
However, the current drafting of this definition will cause confusion (and once
again, will lead to risk-averse interpretations of the law and an unnecessary
chilling of free speech). One obvious improvement to section 14 would be to simply
renumber items (g) and (h) as a new (a) and (b), making clear that they are not
separate items of the same order as the first six (i.e. (a)–(f)), but are
additional conditions governing all six of the first listed items. Alternatively,
some other drafting device could be used. Either way, the point here is that the
meaning should be clear to everyone, not just to some Australian lawyers, that “serious
harm” is harm that falls within one of the items listed (a)–(f) and also
rises to the high level of the current (g) or (h).
15.
Although it is clear enough to me that this is the meaning of the existing language
in the Bill, I don't expect it will be clear to most ordinary people who are
not legally qualified, to the staff of the digital platforms themselves (who
are expected to devise systems to carry out compliance with these provisions),
to ACMA staff as the agency adapts and responds to its new responsibilities, to
journalists attempting to inform the public about the content and meaning of
the legislation, or even, in all cases, to the courts (which sometimes prove
themselves capable of interpreting legislation in unexpected and expansive ways).
16.
Furthermore, even if a drafting technique were used to make the intent clearer,
it should be kept in mind by legislators that we live in an age of concept
creep when any language relating to harm or serious harm – or even to such
expressions as “severe consequences” or “significant and far-reaching
consequences” – is likely to be given an expansive meaning. Unfortunately,
there is a limit to how strong language can be made to ensure that it does not
lend itself to expansive interpretations, but as a further safeguard to the
wording of a revised or replacement Bill, the accompanying explanatory
memorandum could emphasise that these words are meant to establish a
particularly high threshold. The explanatory memorandum could give examples of
what does and does not fall within the words of the Bill. For example, the
words of section 14 of the Schedule would no doubt include a mass panic, shut-down
of an entire city, and a deadly stampede with many casualties as people reacted
to false reports of an imminent nuclear attack on Sydney. By contrast the words
of section 14 would not include widespread but mostly peaceful
opposition to the government’s response to a particular public health crisis.
17.
I take it that the main purpose of the Bill is to protect the public from false
reports that could foreseeably cause extraordinary harms (such as my example above
of disinformation about an imminent nuclear attack on Sydney). If that is
so, the legislation could focus narrowly on this issue, and the point would be
to require digital platforms to have plans to minimise these kinds of extreme,
probably malicious, and in any event false reports. If that is so, there is
no need for many current provisions that are peripheral to this core.
18.
Thus a revised or replacement Bill could be drafted in a way that is perhaps
half of the Bill’s present length. It could give a clearer indication of its
core concern, and that it is not intended to chill public discussion or to
stifle technological innovation. A revised or replacement Bill could establish
a much simpler regulatory scheme than is presently contemplated. The system and
the Bill could be crafted to reassure the industry and the Australian public
that robust public discussion and the emergence of an expanded public sphere are
welcomed in Australia rather than being viewed with suspicion.
19.
If this approach is taken, much of the current Bill can be put aside. The
current version can be replaced by a much shorter and more workable document.
There would, for example, be no need for sections 17–24 of Schedule 9. In that
respect, note that the nature of any dangers from participation on digital
platforms is highly controversial and is the subject of much ongoing research
and discussion. There is no point in requiring these platforms to publish their
own (possibly idiosyncratic and controversial) assessments of these dangers
(with ACMA apparently having a power to demand “better” assessments), and none
of this is relevant to what I understand to be the Bill’s core purpose.
Likewise, there is no need or point to requiring digital platforms to publish
media literacy plans that are likely to be idiosyncratic and controversial.
20.
It is not at all clear at this juncture just what is required to impart
appropriate media literacy to the general public. However, governments have
enormous resources to communicate with the public and to shape the curricula of
education systems at state and federal level. If governments have their own
views about either the dangers of participating in online discussion or the
kind of “media literacy” required for self-protection online, then it is up to
them to communicate these views using their own resources.
21.
Again, if the core purpose of the Bill is to require digital platforms to develop
and implement plans to minimise the kinds of false reports that foreseeably
cause extraordinary harms, the Bill need not contain detailed procedures that
regulate the drafting and approval of these plans. A revised or replacement
Bill could simply require that plans be in place by a nominated date not too
far in the future, that they be registered with ACMA (which would check them
for their likely efficacy), and that any non-trivial changes to these plans
also be approved by ACMA – but with a streamlined process for approval that
could be turned around in a matter of days with a few phone calls and quick
lodgement of documents.
22.
In short, there is no need to hamstring digital platforms with extensive
prescription of how they go about formulating their plans as long as the
plans themselves meet a certain standard of likely efficacy. The parliament
should expect ACMA to develop expertise on this aspect, taking into account international
practice.
23.
I recommend starting again with the aim of producing a much shorter Bill that
has a clear and narrow purpose and involves no display of suspicion and
hostility to digital platforms. There should be an emphasis on the need to
prevent the most extraordinarily dangerous kinds of false reports – something
that no one disagrees with – and on the legislature’s positive attitude to
public discussion and technological innovation. In that form, a revised or
replacement Bill would look more like an attempt to establish a partnership
with the major digital platforms than – like the current Bill – the work of a
highly suspicious government taking an adversarial and provocative stance
towards them.
Professional
news content should not be exempted
24.
At the same time, current exemptions relating to professional news content
ought to be removed. In its current form, the Bill gives an impression of
special solicitude to information that has a particular provenance, as
opposed to material of a particular kind such as parody, satire,
academic discussion, religious doctrine, etc. Content originating from professional
news providers can be just as false and dangerous as content from other
sources. We might hope that it would more often be accurate than content
from other sources, but on the occasions when it is inaccurate it is especially
dangerous because it comes from sources with reputations for being accurate and
authoritative.
25.
If there is any doubt that material disseminated online after originating from professional
news sources can be dangerously inaccurate, consider the following example. An
explosion happened in the courtyard of the al-Ahli Arab Hospital in Gaza City
in October 2023. Following this, revered news outlets such as the New York
Times and the BBC attributed the explosion to an Israeli airstrike, falsely
reported the destruction of the hospital itself (with misleading imagery), and
provided readers/viewers with a greatly inflated toll of deaths and injuries. There
is still some debate over the cause of the explosion, but it was likely an
errant rocket fired by a terrorist organisation operating from within Gaza
rather than an airstrike by Israel. This kind of inaccurate and irresponsible news
reporting can lead to riots and other violence, and when it happens it is at
least as great a danger as false information from less prestigious sources. Whatever
plans are adopted by digital platforms to protect the public from false reports
that could foreseeably cause extraordinary harms, these plans should not
exclude scrutiny of reports from professional news outlets.
An
international dimension
26.
There is also an international dimension to this legislative exercise. It is
not clear how digital media companies that operate worldwide are supposed to
comply with detailed systems of regulation, such as set out in the Bill, that
might be enacted by each of the world’s countries and might impose very
different or even mutually contradictory responsibilities. Once again, that
might not matter if digital platforms were inherently dangerous and were rightly
viewed with suspicion. As we’ve seen, however, these platforms have significant
democratic benefits. Australia should not act so as to be part of an
accumulating international problem that hinders the platforms’ operation and hence
puts their democratic benefits at risk.
27.
Moreover, each time a liberal democracy such as Australia enacts legislation
that suggests hostility to digital platforms, and negatively impacts their
ability to operate freely, it provides a precedent that other nations can appeal
to. The world’s dictatorships and theocracies can argue that if legislation of
this kind is good enough for the likes of Germany and Australia it is good
enough for them, notwithstanding that “false information” laws in dictatorships
and theocracies are designed to suppress any speech that dissents from the
programs and ideologies of their governments. To set a good international
example, Australia should restrain itself and enact legislation aimed at controlling
only the most clear-cut and seriously harmful false content, while imposing
only the minimum necessary burden on the operation of digital platforms.
Final
observations
28.
Finally, I’ve mentioned that there have been some downsides to the emergence of
digital platforms. These have included a generally abusive environment of
discussion in many cases, which can have the effect of driving some people away
from participating. In some cases, individuals have been singled out for public
shaming by online campaigns directed against them personally (in passing, it’s
worth taking note that professional journalists have been deeply implicated in some
of these destructive campaigns against individuals, as with the notorious cases
involving Justine Sacco and Tim Hunt). The Bill does nothing to address this genuine
downside of digital platforms, and it is doubtful that very much can be done
apart from attempting to create a culture where such nastiness and cruelty are widely
regarded with disdain.
29.
However, it is clear enough that many participants in public discussion on
digital platforms act in this manner because they see themselves as having
become political players in a small way. In recent publications, I’ve argued in
support of a morality of public discussion, such as identified by John Stuart
Mill in On Liberty, whereby participants discuss ideas with honesty,
good will, open minds, and tolerance for others, fairly interpreting and
representing what their opponents are saying, and acknowledging whatever
strengths their opponents’ arguments might have. If they were following such a
morality of public discussion, participants would focus on issues and arguments,
and would avoid efforts to stigmatise and destroy their opponents as
individuals.
30.
It is, however, difficult to make this ideal seem attractive when nothing like
it is followed by professional politicians in Australia and other liberal
democracies, who thereby set a bad example. One positive step that members of
the Australian Parliament could take would be simply to commit themselves to
setting a good example to the general public in this country when it comes to
ethical, and at least minimally civil, participation as discussants within the
public sphere. This might be of more social value than any number of detailed
statutes that attempt to regulate and constrain free speech.
Yours
faithfully,
Russell
Blackford
(Dr
Russell Blackford, Conjoint Senior Lecturer in Philosophy, University of
Newcastle)
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