Freedom and accountability

At estimates hearings in the Senate last week, Department of Communications officials were questioned on the proposed bill to give ACMA powers to combat misinformation on digital platforms. Their responses revealed critical problems in the government’s thinking on the legislation.

Senator David Pocock’s questioning focused on whether it is appropriate to exclude government communications from the scope of the bill, Senator Hughes quizzed the government on the practicalities of the legislation’s operation, given the complexity in its scope, while Senator Payman sought a comparison with the EU code. Previously, the Department of Home Affairs was grilled on the reports that it had made to digital platforms about Covid-related misinformation, the identification of which it outsourced to M&C Saatchi.

The government maintains the bill is focused on increasing transparency of the systems and processes digital platforms put in place to combat misinformation. Despite the noise, there is no reason to doubt this, given how the voluntary code currently operates. Yet the bill itself does not define ACMA’s powers in terms of systems and processes but in terms of the type of content to which its regulatory powers apply. This anchoring of ACMA enforcement power to a scope defined by false and misleading content is the main reason the bill is attracting heat for potential government intrusion on freedom of expression. It also fails to recognise the complexities in the nature of misinformation.

It would be politically unwise for the government to broaden the scope of the bill, and it is far more likely to narrow it. But this would undercut the objective of the bill by reducing the range of actions for which platforms are accountable to the regulator. Indeed, the actions which platforms already take with respect to misinformation are broader than those for which they will be held accountable under the bill (or the current voluntary code, for that matter). By coupling platform accountability and ACMA powers to the same scope, the bill ensures that increased accountability can only be achieved through an increase in the scope of ACMA powers.

The government appears unaware of this dilemma, arguing that the bill’s exclusions and high threshold of serious harm help strike a balance with freedom of expression. But protecting freedom of expression means not only ensuring the exercise of government power is legitimate but also that platform measures are transparent and accountable. Limiting ACMA power will not prevent platforms from moderating content that falls outside the scope of the bill. Under the proposed scheme, for example, platforms will not be accountable if they choose to remove professional news content.

As we argue in our submission, in the first instance, the bill should make clear that ACMA powers apply only to the assessment of systems and processes. But to achieve full industry accountability without increasing ACMA power, the bill needs to decouple the scope of that power from a defined range of content and include an independent mechanism for assessing platform content-moderation decisions.

Michael Davis, CMT Research Fellow