A warning to Australia! Forget about the Voice. You are about to become the Voiceless.

You are about to have what little freedom of speech you have, stripped away.

Misinformation/Disinformation Bill has been drafted and is open for consultation

Australians, you are about to have what little freedom of speech you have online, stripped away.

Substacks like this one might simply become untenable under new legislation that is now receiving public consultation.

Furthermore, independent media such as Rebel News, could be completely hobbled, financially speaking.

And people like Monica Smit could be hobbled as well.

And it might well drive Elon Musk’s Twitter away from the shores of Australia.

Draft Code available, comments open till August 6th 2023

Here is where you may ‘participate’ by giving them your personal details and becoming a future target for their disinformation efforts:

https://www.infrastructure.gov.au/have-your-say/new-acma-powers-combat-misinformation-and-disinformation

Here is the draft code: https://www.infrastructure.gov.au/sites/default/files/documents/communications-legislation-amendment-combatting-misinformation-and-disinformation-bill2023-june2023.pdf

Tortuous legislation, but it has a few nasty things in it.

The legislation is tortuous in the extreme. One must search through it to relate the different sections - one feels it is purposely designed this way.

The possible fines are given in penalty units, which in 2023 are units of AU$275.

(https://asic.gov.au/about-asic/asic-investigations-and-enforcement/fines-and-penalties/ )

Here are the main points of the legislation:

The legislation designed to deal with misinformation and disinformation

Excluded content is satire, professional news content, and educational content, as well as content authorised by a State or Commonwealth government. So that’s great: the professional news organisations and the schools and the government can lie to us as much as they like.

Section 7 - It’s misinformation if: (a) the content contains information that is false, misleading or deceptive; and (b) the content is not excluded content for misinformation purposes and (c) the content is provided on the digital service to one or more end-users in Australia; and (d) the provision of the content on the digital service is reasonably likely to cause or contribute to serious harm.

Disinformation adds the idea that the information is intended to deceive.

They can take into account the author of the information and the ‘purpose’ when determining if it is dis/misinformation.

Taking into account the author and ‘purpose’ seems like a great way to ensure that they can simply launch an ad hominem attack, or designate true information as disinformation if the ‘purpose’ is, in their view, bad.

Part 3 of Section 7 says:

For the purposes of this Schedule, in determining whether the provision of content on a digital service is reasonably likely to cause or contribute to serious harm, have regard to the following matters:

(a) the circumstances in which the content is disseminated;the subject matter,

(b) the subject matter of the false, misleading or deceptive information in the content;

(c) the potential reach and speed of the dissemination;

(d) the severity of the potential impacts of the dissemination;

(e) the author of the information;

(f) the purpose of the dissemination;

(g) whether the information has been attributed to a source and, if so, the authority of the source and whether the attribution is correct;

(h) other related false, misleading or deceptive information disseminated;

(i) any other relevant matter.

Who decides this? How do they decide what is misinformation or disinformation?

Well it looks like the ACMA does:

The ACMA can make any sort of rules for digital content

Section 14 says the ACMA can make rules. It essentially doesn’t specify what sort of rules or the limits of those rules.

Note that the digital provider has to provide information to the ACMA if they ask for it.

They can fine companies and individuals

The fines are hidden right at the end, in section 17 “After subsection 205F insert…” etc

$1.375 Million per day, x2?, for not taking something down if it breaches the ACMA ‘rules’

Section 15 says A digital platform provider must not contravene digital platform rules made for the purposes of clause 14.

Every day that the digital platform breaches those rules is a separate offence earning a fine of $1,375,000 penalty per day for a company, $275,000 per day for an individual.

Section 15 means they can fine you if you’ve contravened the rules.

What I think Section 16 means is if you disobey written directions from the ACMA you will be fined as well for continuing to be breaching the rules if you don’t stop. (edited after the email out)

Or maybe they can just double dip with their fines.

$11,000 for each offence of not providing documents or information requested.

Section 18 and 19 say that the ACMA can request documents or information. If the digital provider refuses to dob the user in, and provide all the documents or information requested, they can be fined $11,000

$6.875 million for not following the standard.

A company can be fined $6,875,000 for not complying with “misinformation standards,” or 2% of annual turnover, whichever is greater.

An individual can be fined $1,375,000 for not following the standard.

$275,000 for not following a ‘written direction’ from the ACMA

Financial penalties will apply if a provider breaches subclass 43 (i) or 44(iii) - in other words, if the ACMA provides a written direction to the provider and if a company doesn’t act on it, they can be fined up to $275,000 for each breach, or 2% of annual turnover, whichever is greater. An individual can be fined up to $55,000.

43(i) Compliance - (1) If: (a) a misinformation code that applies to participants in a particular section of the digital platform industry is registered under this Part; and(b) a digital platform provider is a participant in that section of 15 the digital platform industry; the provider must comply with the code.

44(iii) The ACMA may give the provider a written direction requiring the provider to take specified action directed towards ensuring that the provider does not contravene the code, or is unlikely to contravene the code, in the future.

All of these subdivisions stipulate that these are civil penalties - I believe that this is actually worse, because what this means essentially is that the standard of proof is lower than for criminal penalties

Press release from Michelle Rowland, the Federal Minister for Infrastructure, January 20 2023:

The Albanese Government will legislate to provide the Australian Communications and Media Authority (ACMA) with new powers to hold digital platforms to account and improve efforts to combat harmful misinformation and disinformation in Australia.

This marks a major step forward in addressing the spread of online misinformation and disinformation which has grown rapidly in scale and speed.

The ACMA will be given new information-gathering and record-keeping powers to create transparency around efforts by digital platforms to respond to misinformation and disinformation on their services, while balancing the right to freedom of expression so fundamental to democracy.

The ACMA will also be empowered to register an enforceable industry code and to make a standard, should industry self-regulation measures prove insufficient in addressing the threat posed by misinformation and disinformation. This graduated set of powers includes measures to protect Australians, such as stronger tools to empower users to identify and report relevant cases.

These powers are consistent with the key recommendations in the ACMA’s June 2021 report to government on the adequacy of digital platforms’ disinformation and news quality measures. They are intended to strengthen and support the voluntary code arrangements undertaken by industry through the Digital Industry Group Inc (DIGI) and will also extend to non-signatories of the DIGI Code,

The new framework will focus on systemic issues which pose a risk of harm on digital platforms, rather than individual pieces of content posted online.

Digital platforms will continue to be responsible for the content they host and promote to users. In balancing freedom of expression with the need to address online harm, the code and standard-making powers will not apply to professional news and authorised electoral content, nor will the ACMA have a role in determining what is considered truthful.

The Government intends to undertake public consultation on the powers through the release of an exposure draft Bill in the first half of 2023 and introduce legislation in Parliament later this year following consultation.

For more information on ACMA’s 2021 report recommendations visit: https://www.acma.gov.au/report-government-adequacy-digital-platforms-disinformation-and-news-quality-measures

Quotes attributable to the Minister for Communications, the Hon Michelle Rowland MP:

“Misinformation and disinformation poses a threat to the safety and wellbeing of Australians, as well as to our democracy, society and economy.

“A new and graduated set of powers will enable the ACMA to monitor efforts and compel digital platforms to do more, placing Australia at the forefront in tackling harmful online misinformation and disinformation.

“The Albanese Government will consult with industry and the public on an exposure draft of legislation in the first half of this year and looks forward to constructive engagement with stakeholders and industry.”

Photo by Jon Tyson on Unsplash