Letter to the Australian Parliament Regarding the “Combatting Misinformation and Disinformation” Bill

At vero eos et accusamus

Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat. Duis aute irure dolor in reprehenderit in voluptate velit esse cillum dolore eu fugiat nulla pariatur. Excepteur sint occaecat cupidatat non proident, sunt in culpa qui officia deserunt mollit anim id est laborum.

The Australian government is seeking to exploit public sentiment around public stabbings to relaunch Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024. Coupled with Australia’s existing eSafety legislation, the bill would radically expand the government’s ability to control online speech and is part of a broader global push to reshape the online domain.

Below is our letter to the Australian parliament stating opposition to the proposed “Misinformation Bill”:

 

TO:
Committee Secretary
Environment and Communications Legislation Committee
Department of the Senate
Parliament House
CANBERRA ACT 2600
AUSTRALIA

FROM:
Andrew Lowenthal, CEO,
liber-net
Hobart, Tasmania

 

29 September 2024

 

RE: Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 [Provisions]

 

Dear Senators,

My name is Andrew Lowenthal, a native-born Australian and longtime proponent of free speech across the globe. I have worked in human rights and technology for more than 25 years. For almost 18 years I led EngageMedia, an Asia-Pacific digital free expression non-profit. Most recently I worked with Matt Taibbi on the #TwitterFiles, including writing the Australian Twitter Files, and led the mapping of the Censorship-Industrial Complex for Racket News. I also helped coordinate the Westminster Declaration, a new free speech manifesto signed by a large number of high-profile artists and intellectuals. 

I was a fellow at Harvard’s Berkman Klein Center for Internet and Society and Film Studies Center, and MIT’s Open Documentary Lab

I am now CEO of liber-net, a digital civil liberties initiative that combats digital authoritarianism and works to reestablish free speech and civil liberties as the norm for our networked age. We oppose systems of online censorship, their growing social acquiescence, and the accelerating surveillance regimes operating in and through information technology.

With this experience in hand, I write to express my opposition to the proposed Misinformation Bill in the strongest possible terms. Its origins are fundamentally and irreparably flawed. The bill should be immediately stopped. 

Summary of Criticisms:

The bill builds on the voluntary disinformation code developed by DIGI in cooperation with First Draft. The leadership of First Draft participated in an Aspen Institute exercise to coordinate how to suppress the Hunter Biden laptop story, two months before the story broke publicly. The bill extends a code written by an organisation that itself took part in a disinformation operation, one that potentially impacted the outcome of a U.S. presidential election. Mark Zuckerberg recently acknowledged that Facebook (who also participated in the exercise) wrongly suppressed the story, and censored legitimate Covid related content at the behest of the government.

The bill permits labelling content as “misleading” or “false” based on what is “reasonably verifiable,” but its broad definitions of misinformation and disinformation may also include truthful yet controversial or politically inconvenient content. 

The Combatting Misinformation and Disinformation Bill makes the Government an arbiter of truth, while hypocritically exempting select professional groups in media, science, and academia. While small improvements have been made since its initial introduction, the bill remains fundamentally flawed and authoritarian in nature. It would grant sweeping powers to the Australian government to regulate and control online content, risking the suppression of legitimate speech, dissent, and political discourse under the guise of protecting citizens. The desire to create a government-sanctioned, sanitised web content sets a dangerous precedent for global internet freedom, attempting to do for Australia what countries such as China have demanded and often received from Big Tech companies with a financial interest in operating there.

The Combatting Misinformation and Disinformation Bill expands government censorship to include questioning government health measures, stifling any legitimate debate and criticism of public policies. The major shifts in COVID-19 narratives the world has experienced since 2020 illustrate how definitions of “misinformation” can rapidly evolve, making strict censorship programs as proposed in the bill entirely unworkable.  Cumulatively, the proposals in this bill would have a strong chilling effect on journalism, as journalists and commentators fear self-censorship due to potential legal repercussions, limiting investigative journalism.

Detailed Criticisms:

The Combatting Misinformation and Disinformation Bill 2024 would radically expand the government’s ability to control and manipulate online speech and is part of a broader global push to reshape the online domain.

The Combating Misinformation and Disinformation Bill extends the voluntary disinformation code developed by the Digital Industry Group Inc. (DIGI), whose members include Apple, Facebook, Google, Microsoft, TikTok, and previously Twitter/X. In the words of DIGI, the legislation “would enable the ACMA to have a longer-term mandate to oversee The Australian Code of Practice on Disinformation and Misinformation, which DIGI developed and administers.” DIGI developed this code in partnership with US/UK NGO First Draft, now the Information Futures Lab. First Draft’s Asia-Pacific office was housed at the UTS Center for Media in Transition. AMCA’s report on the “adequacy of digital platforms’ disinformation and news quality measures” references First Draft more than half a dozen times, as does ACMA’s paper which guided misinformation code development.

First Draft (now the Information Future’s Lab at Brown University) is a key node in the global Censorship-Industrial Complex. Among other activities, First Draft participated in the Aspen Institute workshop that rehearsed how to suppress the now-verified Hunter Biden laptop story mentioned above. Two months later, the New York Post broke the story only for it to be effectively scrubbed from all major social media platforms as “misinformation.”  

First Draft was also the only NGO in the Trusted News Initiative (TNI), a consortium of legacy media organisations including the BBC, The New York Times, Facebook, Twitter, and The Washington Post, among others. TNI coordinated to steer the prevailing Covid narrative in favour of the guidelines and mandates imposed by most major governments and to suppress dissent. A lawsuit against TNI has shown that TNI claimed it was misinformation to suggest that “COVID vaccines are not effective in preventing infection.”

The fact that the bill extends the work of this clearly dishonest NGO means it should be immediately scrapped.

Through the Australian Twitter Files, I discovered that the Department of Home Affairs (DHA) requested Twitter remove 222 pandemic-related tweets: often jokes, commentary, scientific debate, and information that turned out to be true. Rather than relying on Australian scientists, the DHA referred Twitter to Yahoo! News and USA Today “fact-checks” to justify their censorship requests. FOIA documents revealed there were more than 4,000 such requests to social media. 

When asked for comment, the DHA stated that it was merely referring content to social media platforms for “review against their terms of service” and that “any action taken by digital platforms in response to these referrals was a matter for those platforms.” It sought to clarify that the Department “no longer refers COVID-19 misinformation or disinformation to digital platforms.”

The Twitter Files show that the Australian Twitter staff enthusiastically cooperated with the DHA to enable censorship. These same people also contributed to drafting the voluntary misinformation code. That code, which Twitter signed up to at the time, failed to protect free speech and instead shut down legitimate debate during Covid. The revelation of these close, interconnected relationships reveals a deeply concerning nexus between past censorship efforts and the latest iteration of the Combating Misinformation and Disinformation Bill.

The Combatting Misinformation and Disinformation Bill would also allow the Australian Media and Communications Alliance (ACMA) to levy fines of up to five percent of a company’s global turnover if they deem a platform has taken insufficient steps to remove “disinformation.” The existing eSafety regulations, which also sit within ACMA but do not cover disinformation, can already levy fines of hundreds of thousands of dollars per day, as per the Commissioner’s recent failed attempt to penalise X due to its refusal to censor images of a highly-publicised attack. The likely result of such harsh fines is that platforms will become more risk-averse and target for scrubbing legitimate Australian content, discussions, and information for fear of the costs.

Elites in academia and mainstream media have been exempted from the bill. This is particularly ironic as one of the main sources of misinformation after the recent Bondi Junction stabbing was a mainstream television news station which misnamed the attacker. Exempting academics from the bill is equally objectionable, since recent investigations into the Censorship-Industrial Complex revealed that several elite academic institutions are at the forefront of the new restrictions on free speech. 

Despite some changes from the previous version, Section 14 of the bill still contains an overly-broad definition of the critical term “serious harm.” ACMA would retain the authority to censor information that could be deemed “imminently harmful to the Australian economy including harm to public confidence in the banking system or financial markets”- an authority so broad as to cover everything from daily water-cooler conversations to professional financial advice and analysis. The latest definition of “serious harm” also retains any questions to the efficacy of public health measures, which is particularly unacceptable given the objectionable record of public health officials over the past four years.  Importantly, the bill only requires that the speech in question “contribute” to harm, which leaves open an enormous potential for abusive interpretation to the government’s benefit. 

Section 13’s definition of misinformation would cover content “provided on the digital service to one or more end-users in Australia,” which would include content created by non-Australians. As shown in the Australian Twitter Files, the Department of Home Affairs used the notion of “circulating a claim in Australia’s digital information environment” to justify requests to censor non-Australians. 

Conclusion

Of the many objectionable portions of this bill, what stands out from my point of view is the adaptation of a code written by First Draft, an organisation that took part in a disinformation operation that potentially impacted the outcome of a U.S. presidential election. But inherent to all the objectionable proposals in the bill is the notion that government officials are always and everywhere capable of objectively determining reality and declaring it to the citizenry as such. Aside from the fact that the entire history of complex, bureaucratically-managed society disproves this notion, it is deeply insulting to the intelligence of all Australians to suggest that a select class of officials in ACMA or any of the digital platforms covered by this proposal hold reasoning faculties superior to that of any informed citizen. 

Furthermore, it is practically impossible for the Australian public to know the backgrounds, qualifications, incentives, and political biases of fact-checking officials and their supervisors. Truth, genius, and objectivity are qualities that exist in varying degrees across the entire human family. They cannot and never will be exclusive to any particular group of people, especially in any professional, class, or status context. Allowing free and rigorous debate within the marketplace of ideas, wherein disfavoured speech is countered by favoured speech, is the only acceptable, albeit imperfect, alternative to centralised control of information as proposed in this dangerous bill.

Despite assurances to the contrary, the misinformation bill violates Australia’s commitment to freedom of opinion and expression, as laid out in Article 19 of the Universal Declaration of Human Rights, to which Australia is a signatory. The bill’s imprecise language leaves it open to abuse by the government of the day and unelected bureaucrats. As Australian Human Rights Commissioner Lorraine Finlay noted: “If we fail to ensure robust safeguards for freedom of expression online, then the measures taken to combat misinformation and disinformation could themselves risk undermining Australia’s democracy and freedoms.” And as former Deputy Chief Health Officer Dr. Nick Coatsworth recently wrote in a tweet: “Misinformation causes harm.  The weaponisation of misinformation as a term to shut down debate causes even greater harm.  This bill does the latter.”

A range of laws already exist to combat the kinds of issues the government seeks to address – from false advertising legislation, and defamation law, to the already overly broad eSafety legislation. Open discourse is the central pillar of a free society and is essential for holding governments accountable. Free speech fundamentally protects and empowers vulnerable groups. Individual speech and expression protections are not just for views we agree with but also for views we strongly oppose. I urge the Senate to immediately cease any further development of this bill. 

 

Sincerely,

 

Andrew Lowenthal

CEO, liber-net

Share

Network Affects Substack.

Led by liber-net founder Andrew Lowenthal, NetworkAffects explores digital authoritarianism - privacy threats, bio-metric ID, surveillance, programmable currencies, and attacks on digital civil liberties and free expression from the ‘anti-disinformation’ and ‘fact-checking’ fields.

Sign Up for Our
Newsletter

Enter your email address to subscribe