Law Professor Cynical of Attempts to Legislate ‘Truth’ into Political Advertising

Law Professor Cynical of Attempts to Legislate ‘Truth’ into Political Advertising
A vehicle displaying political advertising makes it's way past Labor Party supporters at a pre-polling booth in the suburb of Wanneroo in Perth, Australia on May 16, 2022. (Lisa Maree Williams/Getty Images)
Daniel Y. Teng

The former head of the then-Australian Broadcasting Authority has expressed concerns over the federal Parliament’s attempts to legislate “truth” into all political advertising, a move that comes amid disillusionment with political discourse in general, as well as information censorship around issues like climate change.

David Flint, also a constitutional law professor, said it was not “possible or desirable” to legislate truth.

“The problem with regulating truth can be seen in the abuse exercised by some social media platforms in removing material and advertising claimed to be ’misinformation,'” he told The Epoch Times in an email.

“It will be recalled that during the 2020 U.S. general election, news concerning Hunter Biden’s laptop was disallowed and suppressed on the ground that it was Russian misinformation, a conclusion supported in writing by an array of ’security experts,'” he said.

“The reports of misinformation proved to be completely untrue. This was indeed Hunter Biden’s laptop.”

He also noted such legislation could contravene implied political communication rights in the Australian Constitution and under international treaties. However, a recent High Court case, Cameron v Becker, appeared to affirm South Australia’s truth in political advertising laws, according to the Parliamentary Library.

Media Organisations Split on ‘Truth’ Laws

Creina Chapman, CEO of the Australian Communications and Media Authority, said implementation of such a law would be “extremely tricky” noting the myriad platforms political parties can advertise on and the timeframes around elections.

“As we know, there is hyperbole, exaggeration and opinion. We need to be very clear about distinguishing between opinions and facts and those types of things,” she told the Federal Election Inquiry on Oct. 18.

While Caroline Fisher, associate professor at the University of Canberra, was supportive of a federal law modelled on South Australia’s amendments to its Electoral Act stating that it is an offence for an “inaccurate and misleading” statement—alleged to be a fact—to be included in a political ad.

“It’s not going to rule out all forms of untruth, but I think it does send a strong signal and it does put up some guardrails around the extent to which people can lie,” she told the Inquiry. “I think it could limit some of the more extreme forms of lying.

“One that I theorised with a colleague is particularly strategic lying. Lying has become a very disturbing and advanced spin technique, and it could help bring that back a little bit. So I would be very strongly in favour of us introducing that federally.”

A Double-Edged Sword

While legislating truth into law could compel political parties to focus on proper policy debates in their campaigns, a major side-effect would be the chilling of discussion on contentious issues like climate change and COVID-19 policy—which attract censorship on major social media platforms and frequent “debunking” articles from news organisations.

Only one year after Australia implemented some of the harshest COVID-19 lockdowns in the world are local researchers beginning to question the efficacy of those measures.

Whereas during the pandemic years, even medical professionals faced censure and were slapped with penalties for discussing views inconsistent with COVID-19 orthodoxy.

Chris Cooper, executive director at Reset Australia, even called for an independent body to be established to “analyse and report on social media activity” focused on identifying bots, fake accounts, and astroturfing.

“While the [Australian Electoral Commission] did incredible work stepping up this year in doing more of that monitoring and analysis, their scope is limited,” he said. “It leaves the Australian public with no-one really looking at how misinformation and disinformation is amplified and at how coordinated campaigns between political actors and campaigning organisations are being run.”

Yet Natasha Eves, the regulatory affairs manager at Free TV Australia, said the matter was “very complex.”

“It would require a huge amount of effort to interrogate whether something was correct under forward estimates or other matters and would be a serious imposition and compliance burden on broadcasters,” she said.

“We have a role in the Australian competition and consumer law in relation to factual claims, but we’re certainly not interposing ourselves in relation to matters of opinion or emphasis. That would be a very different matter and, even in relation to factual claims, would require and in fact impede much political communication by political parties.”

Daniel Y. Teng is based in Brisbane, Australia. He focuses on national affairs including federal politics, COVID-19 response, and Australia-China relations. Got a tip? Contact him at [email protected].
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