Accountability in deficit

On 11 October, Monica and I appeared before the Senate Environment and Communications Legislation Committee, which is considering the government’s new Combatting Misinformation and Disinformation Bill. We discussed some weaknesses in the scope of the bill, which we have covered previously in this newsletter, and in more detail in our submission to the committee.

Under the bill, what counts as misinformation and disinformation is limited to false, misleading or deceptive content that is reasonably likely to lead to serious harm. Many commentators have argued that misinformation and disinformation need to be clearly and narrowly defined to avoid granting excessive discretion to ACMA to determine what online content is acceptable and what isn’t. If the purpose of the bill were to set rules about what content must be taken down or ‘moderated’, this would be understandable. But that is not its purpose. Its purpose is to make platforms accountable for how they moderate user content. This is clearer in the revised bill, with clause 67 ensuring that the discretion about which content to moderate remains with platforms.

In effect, the scope limitation undermines the ability of the bill to make platforms accountable for how they exercise this discretion. ACMA is not even able to request information from platforms about content that falls below the threshold of serious harm. This will make it difficult to assess whether platforms are moderating content in accordance with the requirements of a code or standard. It will also prevent ACMA from ensuring that platforms provide users with recourse for content-moderation decisions that fall below the threshold. The exclusion of professional news similarly means that news organisations have no recourse under the bill for action that platforms might take on their content.

This accountability deficit is worsened by a failure to require platforms to provide data access to researchers. Instead, this will be considered in the review of the bill to be conducted after 3 years of operation. As we noted in our response to questions on notice, data access for researchers is essential for accountability because it provides transparency of both platform and government decision-making. Given the potential impact on freedom of expression from both platform and government actions, researcher access provides an independent mechanism to hold both platforms and government publicly accountable.

Michael Davis, CMT Research Fellow