Human Rights Commissioner Concerned About Labor’s ‘Misinformation’ Bill

Australian Human Rights Commission (AHRC) Human Rights Commissioner Lorraine Finlay appears before Parliamentary Joint Committee at Parliament House in Canberra, Australia, on Oct. 17, 2022. (AAP Image/Mick Tsikas)

The Human Rights Commission (HRC) has said it is concerned about the government’s new proposed Communications Legislation Amendment (Combating Misinformation and Disinformation) Bill arguing it walks a thin line between safety and freedom.

In a submission to the Dept. of Infrastructure, Transport, Regional Development and the Arts on Aug. 23, the HRC said it was concerned about whether a proposed bill violates fundamental human rights.

“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,” the commissioner wrote on Twitter on Aug. 24.

In its efforts to combat misinformation, the Minister for Communications, Michelle Rowland, has announced the Australian government would introduce new laws that would piggyback off and strengthen the 2021 report by the Australian Communications and Media Authority (ACMA).

“Mis and disinformation sows division within the community, undermines trust, and can threaten public health and safety,” she said.

“The Albanese Government is committed to keeping Australians safe online, and that includes ensuring the ACMA has the powers it needs to hold digital platforms to account for mis and disinformation on their services.”

The Draft Bill Criticised For Being Broad and Vague

In the submission released by the HRC, the Commissioner stated that the key problem with the federal government’s proposed Communications Legislation Amendment (Combating Misinformation and Disinformation) Bill was that it aims to give the ACMA increased powers to combat online misinformation and disinformation, but in a way that does not find equilibrium between censorship of objectively untrue content and protection for freedom of expression.

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The categories identified as harmful by the HRC are themselves extremely broad and include things like harm to the health of Australians and harm to the Australian environment; the problem is efforts to combat misinformation and disinformation could be used to restrict public debate or popular opinion.

In an opinion article in the Australian, HRC Commissioner Lorraine Finlay said the primary issue with the bill was that the was overly broad and vague way terms such as misinformation, disinformation and harm are defined.

‘The first issue is the overly broad and vague way terms such as misinformation, disinformation and harm are defined,  laws targeting misinformation and disinformation require clear and precise definitions,” she said.

She also identified a second key problem for the HRC as the low harm threshold established by the proposed law.

“Content that is ’reasonably likely to cause or contribute to serious harm risks being labelled as misinformation or disinformation' and categories of harm are themselves extremely broad, including things like harm to the health of Australians and harm to the Australian environment,” Ms. Finlay said.

The extent to which the content in question must contribute to the serious harm before it is considered to be misinformation or disinformation is not specified, the report noted.

“Reasonable people may have very different views about what constitutes harm under these categories; the definitions also provide no guidance about how harm is meant to be judged” Ms. Finlay said.

The submission links to a 2021 report by a Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, which says there is no universally accepted definition of disinformation and states that “part of the problem lies in the impossibility of drawing clear lines between fact and falsehood and between the absence and presence of intent to cause harm with truthful information able to be labelled as fake news and delegitimised.

Certain Groups Exempt From Censorship Under Proposed Bill

The third concern the commissioner raised was the way the proposed law defines excluded content, which is content that is protected from being labelled as misinformation or disinformation.

“This means government information cannot, by definition, be misinformation or disinformation under the law”, Ms. Finlay, said

“Any law censoring online information to counter misinformation and disinformation must be scrupulously impartial and apolitical.”

There are inherent dangers in allowing any one body—whether it be a government department or social media platform—to determine what is and is not censored content. The risk is that efforts to combat misinformation and disinformation could be used to legitimise attempts to restrict public debate and censor unpopular opinions.

Queensland Emeritus law professor Suri Ratnapala described the legislation as “backward-looking and elitist because it favoured government-approved educational institutions, excluding them from sweeping self-serving mandates.”

Australian Human Rights Commissioner Lorraine Finlay speaking at the opening of The Professor Gabriel A. Moens Library at the at the Sheridan Institute of Higher Education in the city of Perth, Australia on April 4, 2023. (Courtesy of Mark Hutchison)

In the released submission, the Commissioner also notes there is a clear need to combat misinformation and disinformation. However, there is also a real risk of different perspectives and opinions being targeted when doing so.

“There needs to be strong transparency and scrutiny safeguards to protect freedom of expression; it is these mechanisms that are sorely missed in the draft bill’s current form,”the Commissioner told the Australian.