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Will You Be Convicted of Spreading Misinformation?


When I was a kid, I came across some evangelical material with a tag line that has stuck with me ever since. “If being a Christian became a crime in your country, would there be enough evidence to convict you?”

Over the years, as my church attendance waxed and waned, the phrase kept coming back to me, perhaps to give me a little prod, for which I’m now thankful. But overall, it didn’t bother me all that much. But in the last few years, a generalised, perverted form of the phrase has slowly but surely crystallised in my mind.

“If being [insert attribute] became a crime in your country, would any evidence be enough to save you?

Australia’s new Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2023 seeks to impose a wide-ranging set of new obligations, very loosely defined, that will constitute offences if not complied with. The obligations fall on digital services providers, who must either comply with a yet-to-be-registered code, or comply with a code that ACMA will determine.

The content of the yet-to-be-drafted code seems to be focused on preventing the dissemination of false or misleading information that is likely to cause serious harm. The Bill includes a proposed addition to the Broadcasting Services Act 1992 which makes clear the stated purpose:

to encourage digital platform providers to protect the community against harm caused, or contributed to, by misinformation and disinformation on digital platform services; 

In a display of incompetence, or, ironically, deceit, two key terms are either defined using circular argument, or not defined at all.

‘Harm’ is defined as follows:

(a) hatred against a group in Australian society on the basis of ethnicity, nationality, race, gender, sexual orientation, age, religion or physical or mental disability;

(b) disruption of public order or society in Australia;

(c) harm to the integrity of Australian democratic processes or of Commonwealth, State, Territory or local government institutions;

(d) harm to the health of Australians;

(e) harm to the Australian environment;

(f) economic or financial harm to Australians, the Australian economy or a sector of the Australian economy. 

So “harm means…harm.” Circular. Idiots, or malefactors, are running the show.

Likewise, ‘misinformation’ and ‘disinformation’ are distinguished from each other in that disinformation is misinformation with deliberateness added on. But their definitions are also open to a great deal of interpretation:

For the purposes of this Schedule, dissemination of content using a digital service is misinformation on the digital service if:

(a) the content contains information that is false, misleading or deceptive; and

(b) the content is not excluded content for misinformation purposes; and

(c) the content is provided on the digital service to one or more end-users in Australia; and

(d) the provision of the content on the digital service is reasonably likely to cause or contribute to serious harm.

Note all the ‘and’ conditions in items (a) through (d). All of these must be met for ‘misinformation’ to be indicated. So the definition of misinformation relies on the definition of harm, and the definition of harm relies on the definition of…er, harm.

So what does ‘false’ mean? Since the Bill carves out anything published by government or ‘professional news content’ it can’t be anything you read in the press or on the ABC:

excluded content for misinformation purposes means any of the following:

(a) content produced in good faith for the purposes of entertainment, parody or satire;

(b) professional news content;

(e) content that is authorised by: (i) the Commonwealth; or (ii) a State; or (iii) a Territory; or (iv) a local government.

No, only YOU can say things that are false. And the digital service providers have to be seen to be stopping YOU from disseminating that naughty false information.

The TGA is allowed to ban, then permit, the use of ivermectin. If YOU said it worked brilliantly in Uttar Pradesh, it would be misinformation, depending on when you said it, of course.

The government is allowed to say masks don’t work, then say masks do work, but if you say they don’t work, or they do work, then it could be misinformation, depending on when you say it.

Your local government can say plastic bags are bad, but if YOU say they’re durable, useful and sterile, it could be disinformation. Remember, it’s not just about safe and effective products, it’s about THE ENVIRONMENT and it’s about THE ECONOMY.

If the governor of the Reserve Bank says interest rates will stay low for the foreseeable future it’s okay, because he’s from the government; but if YOU say spending like a drunken sailor to pay for people to do nothing while locked in their houses will inevitably cause runaway inflation and consequential interest rate rises, then YOU are spreading lies.

This Bill is set up to force the digital service providers to throttle points of view that don’t fit what the government and the press are saying. We’ve seen this sort of thing before. As I’ve written elsewhere Alexander Solzhenitsyn’s The Gulag Archipelago articulates an eerily similar law in Soviet Russia:

But there was no section in Article 58 which was interpreted as broadly and with so ardent a revolutionary conscience as Section 10. Its definition was: “Propaganda or agitation, containing an appeal for the overthrow, subverting, or weakening of the Soviet power…and, equally, the dissemination or preparation or possession of literary materials of similar content….The scope of “agitation containing an appeal” was enlarged to include a face-to-face conversation between friends or even between husband and wife, or a private letter….”Subverting and weakening” the government could include any idea which did not coincide with or rise to the level of intensity of the ideas expressed in the newspaper on any particular day. After all, anything which does not strengthen must weaken: Indeed, anything which does not completely fit in, coincide, subverts!

The consultation period for this proposed Bill has ended.  Quite a number of submissions (nearly 1,000) were received. A simple key-word search can find names or pseudonyms of the authors of the submissions. Some surprising elements are found when browsing through, like this extract from the submission made by the New South Wales Council for Civil Liberties:

Maintaining the privacy of conversations held over private messaging services is of utmost importance to the NSWCCL. We are pleased to see that the content of private messages will be exempt from the scope of the ACMA’s powers. However, given the above issues highlighted in the ACMA Report, the NSWCCL is concerned that messages sent over a connective media service will be completely excluded from the Act. While we appreciate that messages among friends and family should not be monitored, a key means of spreading misinformation and disinformation is through large broadcast groups with thousands of members – a very different proposition to family groups, and one far similar to a public square.

Importantly, we note that only the content of private messages is exempt and it is open to the ACMA to require connective media services to put in place mechanisms to prevent the spread of misinformation and disinformation. These might include a restriction on the forwarding of messages (as WhatsApp has previously done) or the introduction of misinformation reporting tools, as has been proposed in Europe.

Wow. The NSWCCL is happy for you to keep your message to your sister private, but they want the ‘connective media service’ to snoop on your message and stop your sister forwarding it to someone else. So your private message is not really private, because a whole team of (possibly AI) stalkers is going to be looking over your shoulder. Presumably, the NSWCCL is also happy for the decision on whether to allow or disallow forwarding of the message to sit with the ‘connective media service’ and their algorithmic AI software, or a team of undergrads getting 10 bucks an hour. 

I don’t know where we go from here. But I think back to that evangelical challenge from my youth. If being a dissident in your country became a crime, well, by that time we’d hardly need evidence now, would we?

Republished from the author’s Substack

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  • Richard Kelly

    Richard Kelly is a retired business analyst, married with three adult children, one dog, devastated by the way his home city of Melbourne was laid waste. Convinced justice will be served, one day.

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