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Australia: Why Labor’s threat to free speech must be rejected

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The right to be wrong is both the most vital of freedoms and the most constantly threatened. Vital, because the freedom of expression is the guardian of every other liberty, alerting the public to the abuse of power; and constantly threatened because few temptations come more readily to governments than that of suppressing views they regard as irksome, dangerous or simply incorrect.

That is why John Stuart Mill called the freedom of thought and discussion “the most fundamental doctrine” of a free society. And it is why the Communications Legislation Amendment (Combating Misinformation and Disinformation) Bill 2023 poses so serious a threat to our democracy.

Extraordinarily open-ended, the proposed legislation’s stated purpose is to protect Australians from misinformation and disinformation that is likely to cause “serious harm” – that is, “harm that affects a significant portion of the Australian population, economy or environment, or undermines the integrity of an Australian democratic process” – where misinformation is “online content that is false, misleading or deceptive, that is shared or created without an intent to deceive”, while disinformation is misinformation that is “intentionally disseminated with the intent to deceive or cause serious harm”.

To that end, the legislation empowers the Australian Communications and Media Authority to require digital platforms to implement systems that identify and suppress any offending information.

The government’s Guidance Note suggests the legislation is comparable to the European Union’s Digital Services Act (2022); what it does not say is that the relevant provisions of the DSA apply only to “very large” online service providers. In contrast, the legislation would apply to “social media, search engines, instant messaging services, news aggregators and podcasting services”, regardless of their size and reach.

Indeed, few websites would fall outside the legislation’s ambit, giving ACMA powers whose scope has no equivalent in a liberal democracy.

Virtually none of the legislation’s crucial terms is tightly defined, nor does the legislation even attempt to distinguish questions of fact from those of opinion, creating uncertainty that can only chill the expression of controversial views. And the examples the Guidance Note gives of information it might seek to suppress – such as content that “falsely claims that specific community groups in Australia are responsible for a range of social issues” – so obviously involve matters of opinion as to simply heighten the resulting concerns.

The government has attempted to calm those concerns by claiming that “ACMA would have no role in determining truthfulness”; but that contention is plainly incorrect.

That is because the legislation effectively requires ACMA to audit whether the systems regulated entities have implemented adequately curb misinformation or disinformation. But it is impossible to see how such an audit could be undertaken without assessing the truth or falsity of the content those entities have posted.

And it is inconceivable that ACMA could evaluate complaints about false or misleading content without determining whether the content they refer to is or is not false or misleading.

The legislation does provide a number of exemptions, including for “professional news content” (but not for comments on that content) and for content produced by “accredited educational providers”. However, those exemptions merely highlight the legislation’s underlying lack of logic.

After all, if content is so manifestly odious that it should be suppressed, why would the fact that it appears on (say) a university’s website reduce the danger it poses to the community? One would, on the contrary, expect vesting the content with academic authority to increase its credibility and so aggravate the resulting harm, making the case for its suppression all the stronger.

But reliance on arbitrary distinctions is hardly the legislation’s worst flaw. In effect, the legislation gives ACMA the power to impose vast penalties on regulated entities if their systems are ineffective at eliminating what it considers mis- or disinformation. There are, however, no penalties whatsoever if regulated entities suppress information that is neither false nor harmful.

Given that asymmetry in rewards and penalties, content providers will inevitably prefer to make the error of removing information that does not merit removal to that of not removing information that does merit removal: they will, in other words, convict more “innocent” content so long as that reduces, even marginally, the likelihood of any potentially “guilty” content slipping through their net.

Yet it is hard to conceive of an outcome more starkly at odds with the public interest. In an open society, falsehoods can be – and usually are – corrected by truths; but no number of falsehoods can replace a censored truth. It is therefore far better to allow ten falsehoods to run loose than to rob the public of a single truth: which is the exact opposite of this legislation’s design and likely effect.

None of that means the issues the legislation is seeking to address should be ignored.

Even as unflinching an advocate of freedom of expression as John Stuart Mill recognised the harm certain forms of speech could inflict – and there are, of course, already laws in place that deal, for example, with incitement to violence, online harassment and vilification.

But as Mill rightly pointed out, the harm “caused by an opinion is itself a matter of opinion”. And he warned that deterring the expression of the “opinions and sentiments which happen to be in a minority” necessarily encouraged the oppressive conformism, enforced by vindictive and intolerant majorities, and the resulting intellectual “stagnation and immobility”, which Mill considered “the real danger in democracy, the real evil to be struggled against”.

That danger would, for sure, disappear were the regulator “an infallible judge of opinions”, as well placed “to decide an opinion to be noxious, as to decide it to be false” – but infallibility is not of this world.

Mill therefore argued that any restraints on speech should meet three conditions: parliament should precisely set out the nature of the offending speech and take political responsibility for doing so; there should be no prior censorship of that speech, but only its ex post prosecution; and every alleged breach should be dealt with individually by the courts, giving the impugned content a chance to be defended and allowing any possible harm to be assessed within the context in which it occurred.

Applying those principles to an online environment is undoubtedly challenging. But this legislation simply ignores them altogether. Vague to the point of inviting administrative arbitrariness, it involves parliament delegating legislative authority to a regulatory agency; in turn, that agency can compel regulated entities to exercise prior censorship of speech; and what review mechanisms the legislation provides are hardly capable of identifying, correcting and penalising the suppression of inconvenient truths.

Should it pass, our credibility, when we criticise dictatorships for attacking the freedom of expression, will be severely compromised. However, the greatest harm will be to the fabric and vigour of our democratic life.

“Whatever you do, keep, at all risks, your mind open,” an ageing but still passionate Mill urged his country’s youth, “do not barter away your freedom of thought” and “the liberty of expressing and publishing opinions which is practically inseparable from it”. At a time when the right to take unpopular stances is more threatened than ever, his call should ring in our ears.





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