Tag: free speech

Submission to the Senate Environment and Communications Legislation Committee inquiry into the Communications Legislation Amendment (Combating Misinformation and Disinformation) Bill 2024

With Aaron M Lane. Available in PDF.

Misinformation and disinformation are a perennial concern of democratic discourse. Plato even complained about it. The government is right to identify that the mechanisms for the transmission of mis/disinformation have changed significantly since the advent of social media. The innovation and consumer benefit from social media and digital platforms has been overwhelmingly positive. Nevertheless, it is plausible that the harm and consequences of misinformation have materially increased as a consequence of these changing patterns of transmission. Even if so, this bill is badly misconceived.

We consider here four key reasons why this bill should be withdrawn: the bill presents a significant threat to free speech, the bill delegates too much responsibility to regulators, the bill will undermine trust in public debate, and the bill mischaracterises the misinformation problem.

Albo’s reckless and draconian misinformation legislation completely undermines itself

Published in Crikey

The Albanese government’s misinformation legislation — a new draft of which was introduced in Parliament late last week — is one of the most extraordinary and draconian pieces of legislation proposed in Australia in the past few decades. It is so obviously misconceived, recklessly drafted and wilfully counterproductive that it undermines the entire argument against political misinformation.

The bill would grant the Australian Communications and Media Authority (ACMA) a vast regulatory authority over digital platforms such as Facebook and X, roughly similar to the sort of controls it imposes on broadcast television and radio. 

On the surface, these new powers seem modest. ACMA would have the ability to approve “codes” and make “standards” for the platforms’ anti-misinformation policies. It would impose record-keeping requirements and transparency obligations for fact-checking.

The government says the bill does not provide ACMA with the power to directly censor any particular internet content or any particular users. And that’s exactly right! Instead, the bill empowers ACMA to write codes of conduct and standards that require digital platforms to conduct censorship on its behalf.

Censorship done at arm’s length is still censorship. The point of the legislation is to make codes that are legally enforceable. We already have a voluntary disinformation code. The government is trying to launder the radicalism of this legislation through the complexities of delegation and regulatory outsourcing.

Anybody with a passing familiarity with the evolution of Australian policy can guess what happens next. When the (children’s) eSafety commissioner was established under the Abbott government it was meant to target cyberbullying against children in response to specific requests. A decade later the commissioner is trying to take content down from X globally because of the risk that some (adult) Australians may be using virtual private networks. We’re a long way from the original intent of the Parliament in 2015. 

I’m not trying to make a slippery slope argument here (“this bill seems reasonable, but it’ll lead to something outrageous later on”). The misinformation bill is outrageous already. 

It targets misinformation as content that can cause serious harm to the electoral process, harm to public health (and the efficacy of public health measures), content that vilifies, that risks damage to critical infrastructure, and might cause imminent harm to the Australian economy, including to financial markets or the banking system.

These categories are ripe for abuse. It is trivially easy to imagine how the concept of “serious harm” could be manipulated by this government or a future one. Let’s say we have a debate over voter ID at polling booths in the coming years. Would we really be better off having that debate mediated for us by Commonwealth regulators and Meta’s compliance department? If anything, that would be more damaging to trust in the electoral system than leaving the discussion unbridled.

Digital platform fact-checkers can be skittish and they tend to overreact, particularly when they have regulators peering down their necks and when political tensions are elevated. Mark Zuckerberg admitted as much in August, saying it had gone too far during the pandemic and the 2020 presidential election. But moments of high tension are when censorship does the most damage to trust in institutions and the political system. High tension is when we need free speech the most.

The inclusion of banking and financial market harm as regulated misinformation is bizarre. What’s the most generous interpretation of this provision? That Facebook might be able to stave off a bank run through judicious content deletion? There is no credible economic theory that says suppressing public discussion about the financial system makes it more resilient.

The inclusion of public health, too, is galling if we see it in the current political context. The Albanese government has declined to institute a full inquiry into the COVID-19 policy responses of state and federal governments. Something seems backwards here. We’re not getting a proper audit of what was true and what was not true during the pandemic, but we are getting laws that would prevent untruths from being shared?

The government has been incensed by misinformation since it lost the Voice referendum, convinced that its opponents were being misleading. But it is often a mistake to turn political arguments into concrete legislation. Imagine if the misinformation law had passed before the referendum. It would have been an absolute gift to the No campaign — what are they hiding from you? The Albanese government has not thought this through.

The fact that the misinformation bill excludes the mainstream press and government speech from misinformation is obviously self-interested. But more critically this legislation reveals the incoherence of the anti-misinformation crusade. By trying to be precise about what speech is out-of-bounds, the government is asserting an authority over information it does not, and could not, have. We will absolutely regret putting the government in charge of public debate about the government.

The New Technologies of Freedom

With Darcy WE Allen and Sinclair Davidson. American Institute for Economic Research, 2020

We are on the cusp of a dramatic wave of technological change – from blockchain to automated smart contracts, artificial intelligence and machine learning to advances in cryptography and digitisation, from Internet of Things to advanced communications technologies.

These are the new technologies of freedom. These tools present a historical unprecedented opportunity to recapture individual freedoms in the digital age – to expand individual rights, to protect property, to defend our privacy and personal data, to exercise our freedom of speech, and to develop new voluntary communities.

This book presents a call to arms. The liberty movement has spent too much time begging the state for its liberties back. We can now use new technologies to build the free institutions that are needed for human flourishing without state permission.

Available at Amazon.com

Christian Porter’s defamation reform would be a catastrophic mistake

With Aaron M Lane

Attorney-General Christian Porter wants social media platforms like Twitter and Facebook to be legally liable for defamatory comments made by their users.

Right now, the common law can distinguish between the legal liability of active publishers of information (like newspapers and broadcasters) and the passive platform operators that allow users to publish information themselves. Courts decide where this distinction is drawn according the unique facts of each case.

But in a speech to the National Press Club on Wednesday, the Attorney-General declared he wants to eliminate the distinction altogether: “Online platforms should be held to essentially the same standards as other publishers.”

The Attorney-General’s proposal is fundamentally confused. Removing the distinction between digital platforms and newspapers would have a devastating effect on both those platforms and our ability to communicate with each other.

The proposal is bad on its merits. But even besides that, the conservative government needs to understand how destructive it would be to the conservative movement online.

Let’s start with the legal principles. It makes sense that newspapers and broadcasters are liable for what they publish. They actively commission and produce the content that appears on their services. They read it, edit it, arrange and curate it. They pay for it. Newspapers and broadcasters have not only an editorial voice, but complete editorial control. Indeed, it is this close supervision of what they publish that gives them strength in the marketplace of ideas.

Social media platforms do nothing of the sort. Not only do they not commission the content that appears on our newsfeeds (let alone read, factcheck, or edit that content), they don’t typically confirm that their users are even real people – not, say, bots or foreign impersonators. They merely provide a platform for us to communicate with each other. Social media has facilitated a massive, global conversation. But it has no editorial voice.

In the United States a parallel debate is going on among Republicans about whether Section 230 of the Communications Decency Act – which explicitly prevents courts from treating ‘interactive computer services’ as publishers or speakers for the purpose of legal liability – should be abolished.

Section 230 has variously been described by scholars and commentators as “the 26 words that created the internet” or the “the internet’s first amendment”. The internet law professor Jeff Kosseff writes that eliminating this provision would “turn the internet into a closed, one-way street”. Attorney-General Porter’s proposal would have the same effect.

If social media platforms have to bear legal responsibility for what their users say, they will assume editorial responsibility for it. That means editing, deleting, and blocking all content that could be even the least bit legally questionable.

Newspapers and broadcasters sometimes take calculated risks with what they print, if they believe that the information they reveal is in the public interest. But why would a technological company – a company that lacks an editorial voice or the journalistic vision – be anything but hypercautious? Why wouldn’t it delete anything and everything with even the slightest risk?

And here is where the practical politics comes in. Even if the Attorney-General’s proposal was a good idea in principle, this policy would be particularly devastating for the conservative movement that supports his government. Indeed, it is hard to imagine a legislative proposal that would more effectively, and immediately, cut down the Australian conservative movement online.

After all, what side of politics benefits most from the political diversity and openness of the modern internet? What side of politics has relied most on the internet’s ability to bypass traditional media gateways? It is difficult to imagine the conservative political surge in recent years without social media – without Facebook, Twitter, YouTube, and all those podcast platforms.

If conservatives are concerned about social media networks “censoring” conservative content on their services now, well, making them liable for everything conservatives say would supercharge that.

And why would this policy stop at defamation laws? Why wouldn’t it also apply to liabilities around, say, Section 18C of the Racial Discrimination Act? Or our sedition laws? We are looking at a future where technology companies in California (companies that many conservatives believe are stacked with culturally left employees) could be required to second-guess how the most left-wing judges in Australia might enforce this country’s draconian anti-speech restrictions.

The Coalition government should also reflect on how some of its most recent legislative programs have backfired on conservatives. The Foreign Influence Transparency Scheme, passed in 2018 in order to tackle Chinese interference in Australian politics, is now being used to target the organiser of the Australian Conservative Political Action Conference, Andrew Cooper, and even Tony Abbott.

The Attorney-General is right that defamation law needs reform. Australia’s defamation framework is heavy-handed and disproportionately favours private reputation over the public need to discuss significant issues. But removing the courts’ ability to determine liability for defamation – and instead deputising the world’s technology companies to enforce what they imagine it could be – would be a catastrophic mistake.

Submission to the Australian Competition and Consumer Commission’s Digital Platforms Inquiry

With Gus Hurwitz.

Executive summary: The analysis in the Australian Competition and Consumer Commission’s Preliminary Report for the Digital Platforms Inquiry is inadequate in several ways, most notably:

  • It mischaracterises the relationship between changes in the economics of media advertising and the rise of digital platforms such as Facebook and Google.
  • Its analysis of the dynamics of media diversity is misguided.
  • Its competition analysis assumes its results and makes unsupportable claims about the division of advertising markets.
  • It is recklessly unconcerned with the freedom of speech consequences of its recommendations.
  • It fails to recognise, and proposes to supplant, the ongoing social negotiation over data privacy.
  • It provides a poor analytic base on which to make policy recommendations, as it applies a static, rather than dynamic, approach to its analysis.

There is a real danger that if the policy recommendations outlined in the preliminary report were to be adopted, Australian consumers would be severely harmed.

Available here.

An Institutional Theory of Free Speech

Abstract: The paper provides a theory of freedom of speech based on the new institutional political economy. Through politics individuals seek to achieve collectively what they would not be able to achieve individually, forming institutions of social control. But institutions have costs which need to be discovered. Freedom of speech facilitates information discovery about the subjective costs of social institutions. Those costs are not only discovered but created through the acts of speech and expression. The paper develops this institutional approach by contrasting and complimenting against the three dominant theories of free speech: Mill’s marketplace of ideas theory, Meiklejohn’s democracy theory, and Baker’s liberty theory. The paper then shows how the institutional theory can be meaningfully applied to two common questions in freedom of speech debates: that of protest on publicly accessible property, and the relationship between freedom of speech and political correctness.

Working paper available at SSRN.

Opening statement to Commonwealth Parliamentary Joint Committee on Human Rights inquiry into Freedom of speech in Australia

With Simon Breheny

Freedom of speech is a basic Australian value. A survey, commissioned by the Institute of Public Affairs and released today, finds that 95 per cent of Australians say freedom of speech is important and 57 per cent say it is very important. If you would like copies of that poll, it is available here today. Australia’s commitment to freedom of speech makes this country one of the most diverse, prosperous and socially welcoming on the face of the planet. Laws that undermine free speech put at risk our success story as a socially inclusive and cohesive nation.

Section 18C of the Racial Discrimination Act is one of the most significant restrictions on freedom of speech in this country. Along with the rest of the provisions of part IIA of the Racial Discrimination Act, section 18C ought to be repealed outright. It is an excessive, unnecessary and counterproductive restriction on Australians’ liberties. Alternative proposals for reform would not solve the problems with the legislation that have been identified in particular by recent court cases involving section 18C. In our analysis, simply removing some of the words from the section—or worse, replacing those words with new words—would be ineffective or redundant, or would create even more uncertainty about the scope of the law.

Some participants in this debate argue that freedom of speech is protected by section 18D, but section 18D is a weak and unstable foundation for such an important right. Section 18D has been applied in just three out of more than 70 cases that have been decided by the courts since part IIA was first inserted into the Racial Discrimination Act in 1995. Parliament should not imagine that section 18D provides any certainty about the law. In the QUT case, Judge Jarrett noted a conflict in the authorities about the way in which section 18D might operate.

More fundamentally, section 18D places a burden on the respondent to prove why he or she should have the right to speak freely. This is not a requirement that a free country like Australia should be proud of. A fence is not a moral trump card. Australia is driven by other values, including individual freedom and a democracy. Section 18C harms these values. We urge this committee to recommit to the liberal democratic values that make this country great and to recommend the full repeal of part IIA of the Racial Discrimination Act. Thank you.

The Case for the Repeal of Section 18C

With Simon Breheny, Morgan Begg, Andrew Bushnell, and Sebastian Reinehr

Executive Summary: Research conducted by the Institute of Public Affairs demonstrates that section 18C of the Racial Discrimination Act 1975 must be repealed to protect freedom of speech in Australia. Part A of this report comprehensively outlines the case for the full repeal of section 18C, and the reasons why alternative proposals for reform fail to stand up to scrutiny. The key arguments of this report are that section 18C:

  • Is a restriction on the human right to freedom of speech and an attack on human dignity;
  • Undermines democracy
  • Is inconsistent with a peaceful and cohesive society
  • Punishes defendants through an unfair process
  • Is partially redundant
  • Undermines attempts to combat racism
  • Is unconstitutional.

The report rejects the following proposed compromises as inadequate:

  • Removing ‘offend’ and ‘insult’ from section 18C;
  • Replacing ‘offend’ and insult’ with functionally similar language;
  • Reforming the process for hearing section 18C or the Australian Human Rights Commission.

None of these reforms will address all of the problems created by section 18C. We conclude that section 18C must be repealed in full, along with the associated provisions in Part IIA of the Racial Discrimination Act 1975. Part B of this report outlines the history of section 18C and how it has been interpreted. This information forms the basis for the argumentation in Part A.

Available in PDF here.

Section 18C, Human Rights, and Media Reform: An Institutional Analysis of the 2011–13 Australian Free Speech Debate

With Sinclair Davidson. Published in Agenda (2016) vol. 23, no. 1, pp. 5-30.

Abstract: The paper examines two Australian freedom-of-speech controversies between 2011 and 2013 – the debate over section 18C of the Racial Discrimination Act, and the debate over the Gillard Government’s print media laws. These controversies featured rhetorical and ideological debate about the limits of free speech and the nature of human rights. The paper applies a ‘subjective political economy’ framework to these debates in order to trace the effect of increased perceived ‘disorder costs’ and ‘dictatorship costs’ of freedom of speech restrictions. The paper concludes that policy change is driven by exogenous changes in perceived institutional costs. In the case of the Gillard Government’s media laws, those costs were borne by the Gillard Government, and one would not expect print media laws to be a major political issue in the absence of a further exogenous shock. In the case of section 18C the revealed dictatorship costs of legislation, which includes the words ‘offend’ and ‘insult’, suggest the section 18C controversy will endure

Available at Agenda

When ‘Safe Spaces’ Become An Attack On Ideas

There is something deeply reactionary brewing in American higher education.

The events at Yale and the University of Missouri over the last few weeks make plain that the movement for trigger warnings in university classrooms and safe spaces on campus has turned into a dogmatic moral illiberalism.

We should pay attention to what’s happening. With a few years lag, Australia tends to enthusiastically adopt American intellectual fashions.

At the University of Missouri, anti-racism activists announced that their protest encampment on public property was a “safe space”. A student journalist, Tim Tai, tried to report on the protest.You can watch what happened. In the first half of the video, you’ll see the activists surround and attempt to intimidate Tai. In the last 10 seconds you’ll see no less than an assistant professor of mass media shout for “muscle” to remove another journalist for simply filming a public protest.

The Yale incident appears more trivial, but is more telling.

Just before Halloween, Yale’s Intercultural Affairs Committee emailed students asking them to ensure their Halloween costumes did not involve offensive “cultural appropriation and/or misrepresentation”. In response, one Yale lecturer and associate master at Yale’s Silliman College, Erika Christakis, objected that the idea that cultural appropriation was inherently wrong could stifle free speech and open debate.

Christakis’ email was apparently beyond the pale. Outrage spread across Silliman College. An opinion piece in the Yale Herald responded that “I don’t want to debate. I want to talk about my pain.” (The piece was taken down but you can read an archived version.) The New Yorkercomplains Christakis was “privileging abstract free-speech rights over the immediate emotional experiences of those who are likely to experience discrimination at the university.”

In these two events, we’ve dramatically seen how the apparently benign movement for trigger warnings in university classes and safe spaces for students has metastasised into a more general assault on the contest of controversial ideas in higher education.

The original idea behind trigger warnings was to advise students who had experienced serious and severe trauma, such as sexual assault, that they were about to hear some disturbing content. You can understand the reasoning behind the warnings, as a reasonable concession to the fact that some material, particularly in humanities subjects, can be highly confronting. Likewise the safe space – say a women’s room – might be seen as a benevolent amenity.

But trigger warnings have become absurd. Some students are requesting classic literature come with warnings. And safe spaces are morphing into places where infantilised students hide from ideas.

Now this movement has turned into a generalised attack on open discussion. The entire higher education experience is being reconceptualised as a zone of post-trauma, in which students demand faculty protect them from the expression and thoughts of others.

Using the language of psychological harm, ideas are condemned, rather than rebutted. Students can receive “pain” from the decision of another person to write an email. It is wrong to “privilege” free speech, a mere “abstract right”, over personal emotional experience.

It’s hard to think of anything more contrary to the purpose of education – which is, in the broadest sense, the systematic exposure to ideas outside personal experience – than that.

One of the arguments in Christakis’s email is worth dwelling on. Not her main points about the benefits of provocation, or the challenge of defining what costumes are offensive, but her point that, from a childhood developmental perspective, students need to learn how to reject ideas that trouble them, rather than running immediately to ban and punish.

This accords with the most well-known argument for freedom of speech – that made by John Stuart Mill in his book On Liberty. Mill argues that by hearing contrary ideas, if only to consider and discard them, we grow intellectually.

In this way, free speech and education are tightly intertwined. Limit the former and you hinder the latter. An education system where the students are excessively cushioned from the provocation of others will stifle that development. One would hope you could graduate from Yale being able to articulate why some ideas are wrong.

But what about students who have experienced genuine trauma? Even then, it’s not clear that preventing “triggering” is the best response, as Jonathan Chait noted earlier last year. Students who are genuinely unable to cope with incidental references to that trauma might not be ready for the window into the breadth of human experience that education is supposed to provide. If you are triggered by the racist language in Huckleberry Finn, you are not ready to study 19th century literature.

For those who are ready, hiding from every reminder of trauma can be counterproductive. There’s a growing area of research into what’s known as “post-traumatic growth”, the idea that some people who experience trauma can become stronger for the experience, rather than made permanently fragile.

This isn’t for everyone, of course. Talk to your doctor. But education is supposed to foster intellectual development. It is not supposed to be a safe zone of comfort and emotional protection. Campus radicals used to brag about how transgressive and provocative they were. Now, it seems, they’re more interested in policing the transgressions and provocations of others.