Misinformation and Disinformation Bill 2023 – draft insights

The Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2023 (Cth) (Misinformation Bill) was announced by the Department of Infrastructure, Transport, Regional Development, Communication and the Arts (DITRDCA) in January 2023.  The Misinformation Bill is aimed at restricting the flow of misinformation and disinformation by providing the Australian Communications and Media Authority (ACMA) with increased power to hold digital platforms accountable for allowing the dissemination of allegedly misleading information.

What is the intention of the Bill?

The DITRDCA views misinformation and disinformation as a threat to the safety and wellbeing of Australians, as well as to democracy, society and economy.  This Bill has been introduced as an exposure draft to gain public opinion on these growing challenges, attempting to evaluate a way to balance the freedoms of Australians whilst protecting them from serious online harm.

What is a digital platform?

The Misinformation Bill, if passed, will introduce a new schedule (Schedule 9) that classifies any content creation, connective media or media sharing service as a digital platform service (Digital Platform).  This means that popular platforms such as Facebook, Instagram, TikTok, and potentially video hosting services such as YouTube, will be considered under the scope of a digital platform and be bound by the digital platform rules implemented alongside their classification under Schedule 9.

What is misinformation and disinformation?

For the purposes of the proposed schedule, misinformation is defined as:

• information that is false, misleading, or deceptive;
• provided on a digital service to one (1) or more end users in Australia; and
• content that is reasonability likely to cause or contribute to serious harm.

Disinformation is an aggravated version of misinformation that requires the presence of an intention to deceive.

How wide would the scope of ACMA’s powers be?

The Misinformation Bill empowers the ACMA to combat any misinformation or disinformation on digital platforms that is reasonably likely to cause serious harm.  To this extent, the Misinformation Bill proposes that ACMA be granted the following powers:

• enable ACMA to gather information from, or require digital platform owners to keep records about matters relating to misinformation and disinformation (section 14);
• enable ACMA to request that an industry code of practice be developed to combat misinformation and disinformation.  This code of practice could be registered and enforced by the ACMA (section 38);
• enable ACMA to create and enforce an industry standard on misinformation and disinformation on digital platforms (section 3);
• enable ACMA to investigate Digital Platforms and person with information relating to misinformation and disinformation (section 18); and
• provide ACMA the power to legally enforce or penalise an entity for failure to comply with the above (section 15).

Which platforms will be excluded?

Under section 4(1) of the Misinformation Bill, digital services such as SMS, MMS and internet carriages are excluded from the definition of a digital service platform, with email services and non-interactive media being excluded for misinformation purposes pursuant to section 6.

Things to be considered about the contents of the Misinformation Bill

• Are the definitions of misinformation and disinformation narrow enough to not supress unpopular or controversial opinions?
• How do we distinguish subjective information from misinformation and disinformation?
• Where does clickbait and other audience interaction tactics fall under the definitions of misinformation and disinformation?

Links and further references

Legislation

The Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2023

Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2023 Guidance Note

Further information about business promotion on Digital Platforms

If you need advice on how the Bill will affect your business promoting itself on Digital Platforms, contact us for a confidential and obligation-free discussion:

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

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