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Free-to-air commercial TV networks have significant concerns that the government’s proposed misinformation laws could prompt tech giants to restrict TV content on their platforms, as legal experts warn the laws could encourage over-censorship by companies wanting to avoid hefty fines.
Free TV Australia, the peak body for commercial broadcasters, is adding its voice to free speech concerns over a draft bill that would give the Australian Communications and Media Authority (ACMA) powers to combat online misinformation and disinformation with heavy fines.
Free TV, the peak body representing free-to-air commercial broadcasters, says its members have significant concerns with the federal government’s misinformation bill.Credit: Peter Rae
Free TV – which includes Seven West Media, Network Ten and Nine (which publishes this masthead) – said in a submission it was concerned that legitimate broadcast content could fall foul of the laws when published on digital platforms including Facebook and TikTok, despite legislated carve-outs for news, educational, or satirical content.
A “significant and fundamental problem” of the proposed laws was scenarios such as an excerpt of a breakfast TV show being removed by Facebook after a determination by parent company Meta that it was excluded content, Free TV said.
“Digital service providers, whether it is Facebook, Google, TikTok or others, will truly be gatekeepers of the content of Free TV members that is made available online if the bill remains in its current form,” Free TV said.
“Their decision-making processes will be opaque and unable to be scrutinised by Free TV members. Their processes may result in content that is able to be broadcast by our members, in full compliance with all laws, being banned from different online platforms. It is assumed that this outcome cannot be the intention of the bill,” the submission said.
Tech companies can already remove content from their platforms in line with their own misinformation policies, but the Law Council has suggested the proposed ACMA-enforced regime could have a chilling effect on free speech if platforms become overzealous in censoring content to limit their risk of receiving fines.
Eminent law professor Anne Twomey said the fact there was an exclusion for news content in the proposed legislation did not guarantee that news reports would not be removed by platforms trying to expunge misinformation.
“Simply putting that exclusion in there for professional news content would not, of itself, protect professional news services from having their content effectively censored in the process of these social media companies seeking to fulfil their obligations that are being imposed on them by the government,” Twomey said.
Free TV also echoed concerns by the Australian Human Rights Commission and other legal experts that the bill proposed a too-broad definition of “harm” in determining misinformation and disinformation.
It argued the threshold of harm – defined in the proposed laws as including “harm to the health of Australians” and “disruption of public order” – would have “the unintended effect of restricting freedom of expression on government and political matters, and has the potential for misuse to restrict debate on topics related to health, the environment and the economy”.
Under the government’s proposed laws, ACMA will have a range of new powers including the ability to impose an industry-wide “standard” to force digital platforms to remove misinformation and disinformation. This would be enforceable with fines up to $6.88 million, or 5 per cent of a company’s global turnover – whichever is higher.
Free TV called for a wholesale exclusion of all free-to-air content from the proposed laws. The Greens, who could be decisive in whether the laws pass the Senate, have signalled they will push in the other direction for the exemption for news content to be scrapped, citing News Corp as a cause for concern.
The Coalition’s communications spokesman David Coleman said it was concerning that the content of Australian broadcasters may be censored, labelling the bill “both farcical and a dangerous attack on freedom of expression” and called for it to be withdrawn.
Asked about the criticism of the bill at a press conference on Saturday, Communications Minister Michelle Rowland said she would consider the feedback provided through the consultation process to “ensure that we get this balance right”.
“We know that today it is those digital platforms, big tech, that are making decisions every day with a lack of transparency with a voluntary code, which has independently been found to be lacking,” she said.
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