Codes exposed
The government has followed through on its promise – also made by the previous Coalition government – to give the communications regulator formal powers to deal with mis- and disinformation. Although only an exposure draft at this stage, the Bill is expected to be introduced into Parliament later this year in the form of a new Schedule 9 to the Broadcasting Services Act. It would build on the self-regulatory approach in the Australian Code of Practice on Disinformation and Misinformation developed by industry group DIGI in 2021. We’ll return to this topic in future weeks to explore aspects of the policy debate; here we present a brief outline of the proposed co-regulatory scheme.
The first thing to note is that the existing DIGI Code could – at the outset, at least – remain in operation, albeit with tweaks. The new scheme continues the existing ‘industry-led’ approach, with ACMA (the Australian Communications and Media Authority) having powers to set record-keeping rules and obtain information. But if ACMA thinks a registered and enforceable code is needed, it can formally request that an industry association (such as DIGI) develop a code for registration. Once registered, failure to comply can have consequences including ACMA applying to the Federal Court for a civil penalty order. And as with most co-regulatory code schemes, there’s another level to the ACMA powers: if a code developed by industry does not pass the tests for registration (including that it adequately protects the community) – or if ACMA forms the view that a code which it has registered is no longer working to provide adequate protection for the community – ACMA can develop its own standards.
ACMA is given extensive enforcement powers under the draft Bill in relation to reporting and information provision and compliance with registered codes and standards. The suite of powers varies for these different elements but overall includes infringement notices, formal warnings, remedial directions and civil penalties.
Finally (for now), it’s interesting to note the connections with and departures from the existing DIGI Code and other legislation. The scheme’s definitions, including key concepts around the meaning of misinformation, disinformation and harm are different from those in the DIGI Code. We’ll need to do some more work to understand the significance of these differences, including how the statutory definitions would sit with the DIGI Code's subsidiary concept of ‘inauthentic behaviours’. We’ll also look at how – instead of borrowing from existing legislation such as the Online Safety Act – the draft Bill creates its own definition of a ‘digital platform service’. It does this by way of a foundation concept of a ‘digital service’, of which there are several types such as a ‘connective media service’ (which includes social media) and ‘content aggregation service’ (which includes search engines). In various ways, the draft Bill also excludes certain types of service and content such as emails and texts as well as SVOD streaming services, professional news content, authorised electoral communications, entertainment, parody and satire.
At this stage, the Department of Infrastructure, Transport, Regional Development, Communications and the Arts is consulting on the provisions of the proposed Bill, including some of the aspects discussed above, such as the definitions of disinformation and misinformation. The materials include a useful guidance note explaining the overall approach and the specific provisions of the draft Bill. Submissions close 6 August.
Derek Wilding, CMT Co-Director
This article is from our fortnightly newsletter of 30 June 2023.
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