Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 - Commentary on Ministerial Responses [2024] AUSStaCSBSD 225 (20 November 2024)

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Purpose	The bill seeks to amend the Broadcasting Services Act 1992 to combat misinformation and disinformation via new requirements on digital communications platform providers. To ensure compliance with these new requirements, the bill also seeks to expand the Australian Communications and Media Authority’s regulatory and legislative powers to make rules, set standards, approve codes, impose reporting conditions and more. The bill also introduces consequential and transitional amendments across the Australian Communications and Media Authority Act 2005 and the Online Safety Act 2021 to insert definitions and references to the provisions created by the bill.
Portfolio	Communications
Introduced	House of Representatives on 12 September 2024
Bill status	Before the Senate

Significant matters in delegated legislation^[339]

2.153 This bill seeks to amend the Broadcasting Services Act 1992 to introduce a new Schedule 9 that would impose requirements on certain digital communications platform providers^[340] (providers) relating to misinformation and disinformation. These providers would be required to make specified information publicly available and comply with any requirements set out in digital platform rules. These rules would be made by the Australian Communications and Media Authority (ACMA) and would include rules relating to:

2.154 A provider who contravenes the digital platform rules would be subject to a civil penalty of up to 5,000 penalty units for a body corporate (currently $1.565 million) or 1,000 penalty units for a non-body corporate (currently $313,000).^[344]

2.155 In Scrutiny Digest 13 of 2024^[345] the committee requested the minister’s advice as to the following matters:

Minister for Communication’s response^[346]

2.156 In relation to why it is necessary and appropriate to leave to the rules all details regarding risk management, media literacy and complaints, the minister advised that the matters that may be provided for in rules are not appropriate for inclusion in the bill noting:

2.157 In relation to the complaints and dispute handling processes for misinformation complaints the minister reiterated the above reasons as to why such matters are more appropriate for inclusion in the rules. The minister acknowledged that while there is no express requirement in the bill for a provider to publish the particulars of its complaint or dispute handling processes, providers which have such processes in place are required by the bill to publish them. The minister stated that the bill ‘expressly authorises’ the making of rules regarding complaint and dispute handling processes, and that while it may be possible to develop baseline requirements for this in the bill itself, this would be fraught with ‘risks of overregulation and inflexibility’, particularly prior to the ACMA gaining a thorough understanding of the sector through its information gathering powers.

2.158 In relation to whether the bill could provide that all of the ACMA’s decisions made under the rules are subject to merits review, unless merits review is specifically excluded, the minister advised that ‘it can be expected’ that the ACMA will specify in the rules the administrative decisions where merits review will lie and that it would be impractical to require the rules to specify every action that might conceivably be held to be a ‘decision’ unless specifically excluded. The minister advised that providers (who will be extremely large corporations with ample resources to use litigation to delay administrative processes) might make applications for merits review of various actions taken by the ACMA on the basis that such action constitutes a ‘decision’. The minister also advised that such rules would be subject to regular scrutiny by the Senate Standing Committee for the Scrutiny of Delegated Legislation and the disallowance process.

Committee comment

2.159 The committee thanks the minister for this response. The committee considers the response has largely established why matters relating to risk management and media literacy are appropriate for inclusion in delegated legislation, particularly noting that the area of digital technology is rapidly changing. As such, the committee makes no further comment in relation to the inclusion of these matters in delegated legislation.^[347]

2.160 In relation to complaints and dispute handling processes for misinformation complaints, it is clear there is no requirement under the bill for providers to have such processes in place. What is required is that if a provider has such a process, this is subject to publishing requirements, and the ACMA ‘may’ also make rules that could require providers to implement and maintain complaints and dispute handling processes. However, if the ACMA chooses not to make such rules, and providers choose not to implement complaint and dispute handling processes, providers could, acting in compliance with this scheme, remove content they classify as misinformation or disinformation and there would be no legal requirement on the provider to facilitate complaints. The committee considers the ability of persons to complain about the operation of this scheme is an integral part of ensuring the scheme does not overreach. The committee considers that the bill itself should set out, at a high level, that providers subject to this scheme must implement and maintain complaints and dispute handling processes for misinformation complaints, or at a minimum, that the ACMA must make rules requiring this.

2.161 In addition, under the bill, applications may be made to the Administrative Review Tribunal for review of decisions of the ACMA made under the rules, so long as the rules provide that the decision is a reviewable decision. The committee considers that, generally, administrative decision that will, or are likely to, affect the interests of a person should be subject to independent review unless a sound justification is provided. The committee notes the minister’s advice that providers might frustrate the objectives of the legislation by applying for merits review of various actions on the basis that it might constitute a ‘decision’, if all decisions by the ACMA were subjected to merits review. However, the committee notes it would be possible for the ACMA in making the rules to specifically exclude any decision that was not appropriate for merits review. However, on the basis of the minister’s advice, including that it is expected that the ACMA would provide for merits review where a decision affects personal interests and does not fall within a recognised class of administrative decisions unsuitable for merits review, the committee makes no further comment in relation to this.

2.162 The committee considers the minister’s response has largely addressed its concerns regarding the use of delegated legislation in relation to risk management and media literacy plans, and review of the ACMA’s decisions under the rules. However, the committee retains scrutiny concerns that there is no requirement in the bill that providers must implement misinformation complaints and dispute handling processes, which the committee considers as integral to the operation of the scheme.

2.163 The committee recommends that consideration be given to amending the bill to require digital communications platform providers to implement and maintain misinformation complaints and dispute handling processes, or at a minimum, to provide that rules must be made to establish this.

2.164 The committee otherwise draws these scrutiny concerns to the attention of senators and leaves this to the Senate as a whole.

2.165 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation.^[348]

2.166 The committee also draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.

Privacy
Significant matters in delegated legislation^[349]

2.167 The bill also provides the ACMA with the power to make rules to place record keeping and reporting requirements on providers in relation to misinformation and disinformation.^[350] Proposed section 30 states that the rules may require providers to make and retain records relating to misinformation or disinformation and measures implemented by providers to respond to this (the ACMA may also require providers to give records to the ACMA if necessary for it to perform its monitoring and compliance functions).^[351] The bill provides that before making such rules the ACMA must consider the privacy of end-users, and that rules must not require providers to make or retain records of the content of ‘private messages’ or of VoIP communications (non-recorded real-time voice communication using the internet). What constitutes a private message is a message between two end-users or to numerous end-users that does not exceed the number specified in the rules, or if no number is specified, 1,000.^[352] Failure to comply with the rules would be subject to a civil penalty (up to 5,000 for a body corporate or 1,000 for a non-body corporate).^[353]

2.168 In Scrutiny Digest 13 of 2024^[354] the committee requested the minister’s advice as to:

Minister for Communication’s response^[355]

2.169 In relation to why the rules, rather than the bill itself, will include all details regarding record keeping relating to misinformation or disinformation, the minister advised that it would be impractical to develop appropriately targeted baseline requirements in the bill because of the need to make different provisions for different classes of providers. The minister advised that by not having any baseline requirements in the bill this removes the risk of regulatory overreach, enables regulation to be better tailored and respond more rapidly to emerging risk.

2.170 As to why privacy protections specified in the explanatory memorandum are not included in the bill itself, the minister advised that including such safeguards in all instances would not be feasible in every case and therefore it would not be possible for the bill to provide that the rules must include requirements for de-identification and time limits on record keeping. The minister advised that in making the rules the ACMA is expected to consider the extent to which those records are a necessary and reasonable means to achieve the regulatory objectives, and this would be scrutinised when the rules are put before Parliament.

2.171 Finally, the minister advised that in determining a different number of maximum end-users as to what constitutes a ‘private message’, this will be informed by information made available to the ACMA following operation of the provisions. In relation to the minimum number of end-users the minister advised that if the ACMA specifies a lower number in the rules it will need to provide a justification at that time as to why such messages need to be brought into scope.

Committee comment

2.172 The committee thanks the minister for this response. The committee acknowledges the minister’s concern regarding regulatory overreach, but notes that it is very common for primary legislation to provide that the rules may make different provisions for different classes of persons. The committee appreciates that different providers may need a different regulatory approach, but is concerned that all aspects of record-keeping requirements, including safeguards, are largely left to the rules.

2.173 Further, it remains unclear to the committee why more specific privacy safeguards cannot be included in the bill. Again, the committee appreciates it may not always be possible to de-identify all records or have the same time period for retention for all types of records. However, the committee considers it would be possible, for example, for the bill to require that the rules not require retention of identifiable information if the objectives of retention can be achieved by retaining de-identified information. This would build a baseline safeguard into the bill to better protect the right to privacy while ensuring it would only apply when it is reasonably appropriate. The committee does not consider it sufficient to leave the question of whether there are sufficient safeguards in the rules to the parliamentary scrutiny process, noting this occurs after the rules are already in force, and there is no requirement for concerns raised by the scrutiny committees to be resolved.

2.174 Finally, the committee considers that the bill, in providing that the rules cannot require providers to make or retain records of the content of private messages, is a very important safeguard intended to protect the right to privacy. The committee would be alarmed if the content of private messages, for example, sent via Whatsapp, were required to be retained by providers. Yet, the bill allows the rules to potentially limit the effectiveness of this safeguard if they were to specify a low number of end-users that constitutes a ‘private message’. If the rules stated that the number was five, then the content of, for example, family group messages sent between six people, would not be considered a private message and would therefore be required to be retained. While the committee appreciates there is no current intention to set the number this low, and that the rules would be subject to parliamentary oversight, as a matter of law there would be no constraint on the rules setting the number this low and therefore undermining an important privacy protection. The committee considers that it has not been established why the bill cannot provide a minimum number that the rules cannot go below. The committee notes that the explanatory memorandum (as reiterated in the minister’s response) already sets out that 150 members of a group is the most cited number as to the limit on the number of meaningful relationships humans can maintain at a time, and it is therefore unclear why the bill cannot include this as the minimum number.

2.175 The committee remains concerned that all aspects of record-keeping requirements, including safeguards, are largely left to the rules. The committee considers the bill should set out minimum privacy protections regarding record-keeping requirements. The committee also considers it an important privacy protection to require ‘private messages’ not to be retained by providers and so remains concerned that the rules can set out what constitutes a ‘private message’.

2.176 As such, the committee recommends that consideration be given to amending the bill to:

2.177 The committee otherwise draws these scrutiny concerns to the attention of senators and leaves this to the Senate as a whole.

2.178 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation.^[356]

2.179 The committee also draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.

Freedom of expression
Significant matters in delegated legislation^[357]

2.180 The bill specifies that providers in the digital platform industry may develop misinformation codes. If the ACMA is satisfied that a body or association represents a particular section of the digital platform industry, the ACMA may request that they develop a misinformation code.^[358] The ACMA may make a misinformation standard if such a request is not complied with; or the ACMA considers a particular section of industry is not represented by a body or association; a code is not providing adequate protection; or there are exceptional and urgent circumstances.^[359]

2.181 The bill does not set out what must be in such codes or standards. Instead it provides examples of matters that may be included depending on which section of the digital platform industry is involved. Examples of what might be in codes or standards include:

2.182 The ACMA may approve a code developed by industry if the ACMA is satisfied that there has been appropriate consultation, the code requires participants to implement measures to prevent or respond to misinformation or disinformation, and enables assessment of compliance with the measures.^[361] In addition, the ACMA may only approve a code, or make a standard, if the ACMA is satisfied that:

2.183 Once the ACMA has approved a code, or made a standard, the code or standard would be a disallowable legislative instrument.^[363]

2.184 If providers did not comply with a code or standard they would be subject to significant civil penalties. For non-compliance with a code, a body corporate provider could face a civil penalty of up to 10,000 units (or $3.13 million) or up to two per cent of their yearly annual turnover, whichever is greater. This increases to 25,000 units (or $7.825 million) or five per cent of annual turnover for non-compliance with a standard.^[364]

2.185 In Scrutiny Digest 13 of 2024^[365] the committee requested the minister’s advice on the following matters:

Minister for Communication’s response^[366]

2.186 In relation to the definition of ‘professional news content’, the minister noted that the bill has aligned the definition of journalism to existing tests which contemplate journalism as a line of work subject to codes of practice or professional standards relating to the provision of quality journalism. The minister advised that where content originates from a person who meets the criteria of having produced ‘professional news content’, there are generally established complaint resolution processes that may address harms arising from that material, and additional commercial or regulatory levers that ensure high quality journalism for bodies captured by this exemption.

2.187 The minister advised it would be inconsistent with the policy intent of the bill to exclude content (that otherwise might be classified as misinformation or disinformation) by a person who might simply call themselves a journalist. The minister advised there is a greater potential for harm from the spread of content from self-described ‘journalists’ whose activities are not subject to any professional standards, oversight or accountability mechanisms. The minister also stated that expanding the definition of journalism risks inadvertently covering activities of foreign interference operations driven by state-based actors that masquerade as producers of legitimate journalism.

2.188 In relation to leaving to the codes and standards all detail regarding the processes for providers to respond to misinformation or disinformation, the minister advised that the bill does not set out all matters which must be in a code as the level of risk will depend on the relevant industry and class of provider. The minister advised that this reflects the principle that regulation should only be imposed to the extent necessary to address any harm not being adequately mitigated by industry self-regulation. The minister advised that it is not intended that a code need be in force which deals with every matter which could be in a code, and as such it is not possible to specify the matters that a code or standard must contain without reducing the flexibility with which industry or the regulator may operate.

2.189 In relation to requiring the ACMA to be satisfied that a code or standard appropriately balances protection of the community with the right to freedom of expression, the minister advised that the ACMA will need to prepare a statement of compatibility with human rights with every legislative instrument and as such will need to consider the right to freedom of expression when doing so. The minister also advised that the right to freedom of expression, under international law, has an ‘inherently indeterminate character’ that makes them ‘inappropriate for incorporation into Australian law as legal standards that limit the power of decision-makers’.

Committee comment

2.190 The committee thanks the minister for this response. The committee reiterates that this bill, in providing for substantial penalties for providers who do not comply with requirements regarding how they deal with concerns about misinformation and disinformation on their platform, could incentivise providers to take an overly cautious approach to the regulation of content. Ultimately, whether these measures will unduly trespass on the right to freedom of expression will depend on a mixture of how robust the free speech protections are in the codes or standards, and how they are applied in practice.

2.191 The committee reiterates that the breadth of the exceptions is relevant when considering the limit on freedom of expression. In this regard, the bill excludes the dissemination of professional news content from what constitutes misinformation or disinformation. The committee acknowledges the minister’s advice that where a person is subject to quality standards and codes this helps to ensure quality, arms-length journalism that is less likely to constitute misinformation or disinformation. However, while the definition of misinformation and disinformation require that the content must be provided to one or more end-users in Australia, the person posting the content does not need to be in Australia. As such, it is likely that a significant amount of news content will be produced by persons located overseas, and it remains unclear how providers, particularly individual fact-checkers, would be able to ascertain if the person who produced the content was subject to appropriate editorial standards. The committee reiterates that if this exception is interpreted overly narrowly there is the potential for news content produced by journalists from countries without established journalistic rules or standards to be blocked, despite the content potentially reporting news and current affairs.

2.192 The committee considers there are important protections in the bill but much of the detail as to how this is approached in practice will be set out in the codes and standards, rather than in primary legislation. While the committee acknowledges the minister’s advice as to the need for flexibility as to what is included in a code or standard depending on the relevant industry or provider, without knowing the detail of what will be included in these codes or standards, including no requirement as to what must be included, it is difficult to adequately assess whether this measure may unduly trespass on rights and liberties.

2.193 Finally, the committee reiterates that the approach of this proposed scheme is to incentivise providers to remove content assessed to be misinformation or disinformation. Substantial penalties apply if inappropriate content is not adequately managed. Yet, no penalty is applicable if providers go too far in limiting freedom of expression. There is no legislation to prevent providers from blocking all content in relation to a topic they deem contentious. The bill seeks, in some degree, to address this by requiring the ACMA, when approving codes or making standards, to be satisfied that it is reasonably appropriate and adapted to achieve the purpose of protecting the community from serious harm and goes no further than is reasonably necessary.^[367] However, the committee is concerned this may not be sufficient to fully protect the right to freedom of expression. Given the only oversight of what private providers do in response to this scheme is through the enforcement of these codes and standards, requiring those codes and standards to appropriately balance the right to freedom of expression is essential. The committee does not consider that consideration of the right to freedom of expression at the time a statement of compatibility is prepared is sufficient to protect this fundamental right, noting that the statement of compatibility forms part of the explanatory material only and does not require legislation to be compatible with rights.^[368] The committee is not convinced by the minister’s argument that the right to freedom of expression is inappropriate for incorporation as a legal standard that limits the power of decision-makers. The committee notes that freedom of expression has been characterised as one of the ‘fundamental values protected by the common law’.^[369] Chief Justice French has said that ‘freedom of speech is a long-established common law freedom’.^[370] There is considerable jurisprudence, including international jurisprudence, as to the operation of this right – undermining the argument that the right has an ‘inherently indeterminate character’. The committee considers the bill would better balance the need to protect the community from harm, with the important common law right to freedom of speech, if it were to explicitly require the ACMA to consider whether this is appropriately balanced before approving a code or making a standard.

2.194 While the committee notes that the bill includes safeguards, it cautions that the proposed scheme has the potential to unduly trespass on personal rights and liberties by potentially acting as a chilling effect on freedom of expression, as there are incentives for providers to remove content that might constitute misinformation or disinformation, while there is no incentive for providers to respect the right to freedom of expression. The committee also remains concerned that all processes by which participants in a digital platform industry are to prevent or respond to misinformation or disinformation are left to delegated legislation.

2.195 To better protect the right to freedom of expression the committee recommends that consideration be given to amending the bill to require the ACMA to be satisfied that a misinformation code or standard appropriately balances the importance of protecting the community from serious harm with the right to freedom of expression.^[371]

2.196 The committee otherwise draws these scrutiny concerns to the attention of senators and leaves this to the Senate as a whole.

2.197 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation.^[372]

2.198 The committee also draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.

^[339] Schedule 1, item 2, proposed Schedule 9, Division 2, Subdivisions B-D. The committee draws senators’ attention to these Subdivisions pursuant to Senate standing order 24(1)(a)(iv) and (v).

^[340] Schedule 1, item 2, proposed sections 5 and 7 set out the providers who would be bound by these requirements, as being those who provide a digital communications platform, which is a digital service that is a connective media service; a content aggregation service; an internet search engine service; a media sharing service; or a kind of digital service determined by legislative instrument, but does not include an internet carriage service, SMS service or MMS service.

^[341] Schedule 1, item 2, proposed Subdivision B, Division 2, Part 2, Schedule 9.

^[342] Schedule 1, item 2, proposed Subdivision C, Division 2, Part 2, Schedule 9.

^[343] Schedule 1, item 2, proposed Subdivision D, Division 2, Part 2, Schedule 9.

^[344] Schedule 1, item 2, proposed sections 20, 23 and 26 together with Schedule 2, item 20, proposed subsection 205F(5E).

^[346] The minister responded to the committee’s comments in a letter dated 24 October 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 14 of 2024).

^[347] Government amendments that passed the House on 7 November 2024 (ZC302) also proposes to introduce additional rule making powers regarding a data access scheme for independent researchers. Noting the technical detail to be included in delegated legislation the committee makes no comment in relation to this.

^[349] Schedule 1, item 2, proposed section 2, definition of ‘private message’ and section 30. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i) and (iv).

^[352] Schedule 1, item 2, proposed section 2, definition of ‘private message’.

^[353] Schedule 1, item 2, proposed section 31 together with Schedule 2, item 20, proposed subsection 205F(5E).

^[355] The minister responded to the committee’s comments in a letter dated 24 October 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 14 of 2024).

^[357] Schedule 1, item 2, proposed Division 4. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i) and (iv).

^[363] Schedule 1, item 2, proposed subsections 47(6), 55(2), 56(2), 57(3), 58(3), and 59(2).

^[364] Schedule 1, item 2, proposed sections 52 and 62 together with Schedule 2, item 20, proposed subsections 205F(5G) and (5H). Note that a non-body corporate would face up to 2,000 penalty units for non-compliance with a code and up to 5,000 penalty units for non-compliance with a standard.

^[366] The minister responded to the committee’s comments in a letter dated 24 October 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 14 of 2024).

^[367] Schedule 1, item 2, proposed subparagraph 47(1)(d)(ii) and (iv), 50(1)(d)(ii) and (iv), section 54 and subsection 60(2).

^[368] See, for example, Parliamentary Joint Committee on Human Rights, Inquiry into Australia’s Human Rights Framework (30 May 2024), pp. 239–242 and 324–326, noting in particular at p. 241 ‘[a] persistent concern is that statements of compatibility with human rights will always state that a proposed law is consistent with human rights, regardless of the international law position’.

^[370] Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3 at [43] (French CJ).

^[371] Schedule 1, item 2, proposed paragraphs 47(1)(d), 50(1)(d), section 54 and subsection 60(2).

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests