Breaking down the bill: What Labor's new hate speech law means for Australians

As one might expect, the new law designed to expand the powers of the federal government to manage disinformation has proven to be controversial. With provisions aimed at defining misinformation, disinformation, harm, and hate speech, as well as expanding the power of ACMA to set standards for media and related industries and place requirements on businesses operating in Australia, such a bill was destined to provoke strong reactions.

Whether the bill is good or bad is not for us to say. Thankfully you don't need to study a juris doctor online to understand what this new bill means. In this article, we'll give a rundown of the factors leading up to these new regulations, the basics of the new law, the potential implications for individuals and businesses, and the reactions it has elicited from the public and lawmakers thus far.

In 2017, the ACCC was directed by the offices of the Treasurer and Communication Minister to prepare a Digital Platforms Inquiry Report, an investigation into the impact of online platforms on the Australian media and advertising environment. After two years of investigation, the "final" report was published in 2019, and included in-depth analyses and critiques of the impacts of large internet companies like Meta (Facebook) and Alphabet (Google) on the Australian informational and commercial landscape.

The Treasurer subsequently directed the ACCC to conduct an additional 5-year inquiry, to be completed in 2025. That inquiry is ongoing, but it releases semi-annual interim reports, which have had a notable impact on the course of the new hate speech law and have even explicitly called for regulation.

In October 2022, the EU passed the Digital Services Act, a piece of legislation aimed at reigning in the behaviours and potential monopolistic tendencies of the same large social and commercial platforms. It also aimed to restrict black market activity on major platforms and to curb hate speech. The legislation drew both inspiration and precedents from the European Court of Human Rights case Delfi AS vs Estonia, which ruled in favour of the Estonian government's ability to hold Delfi, a news publication, liable for the content of anonymous hate speech posted in the comments sections of its articles.

The actions of EU human rights courts against an obscure Estonian news site might seem like a distant concern for Australian regulation targeting large companies like Alphabet and Meta, but, as you will see, the influence is demonstrable.

In January of 2023, the Minister for Communications announced the intention of the Australian government to introduce new laws designed to empower the ACMA, the government body tasked with regulation of communications and media services, with the authority necessary to manage disinformation and misinformation deemed to be a threat to the Australian commercial and informational environments.

In November of 2023, the ACCC released its seventh interim report. This report made particular note of the EU Digital Markets Act, which had released a highly relevant announcement in September 2023, just as the ACCC interim report released that November was finalised. The DMA commission had designated six "gatekeepers:" digital platforms that provide an "important gateway between businesses and consumers concerning core platform services." The gatekeepers? Amazon, Alphabet, Apple ByteDance, Meta, and Microsoft.

They noted that the vast majority of internet traffic passes through these "gatekeepers," and that, as such, they have unique responsibilities. The DMA laid out a list of Obligations and Prohibitions for these companies to follow, with the stated aim of "offering more choice and more freedom to end users and business users of the gatekeepers' services." The interim report also noted the passing of the DSA and its explicit aim of reducing hate speech.

This interim report applied implicit pressure on the present government to take action to control the influence and content of these platforms, as did another major newsworthy event in April: the Bondi Junction stabbings. Despite not having any explicitly racist motivations, the stabbings, committed by a Queensland native, were the subject of widespread discussion on social media platforms.

Before details about the killer emerged, the internet was rife with speculation of potential motives, including rumours started by known Australian reactionaries Thomas Sewell, Maram Susli, and Simeon Boikov that the stabber was a Jewish man named Benjamin Cohen, which led to be University of Technology Sydney student being named by 7 News as the attacker, leading to his being harassed and defamed.

The Islamophobia Register of Australia also recorded a rise in hate crimes following the Sydney church stabbing, with up to 46 incidents in its wake - a substantial rise compared to the normal rate. These incidents, and the associated consequences, stoked concerns about the role of social media in spreading misinformation and hateful sentiments.

In the confluence of these events, and the impending ACMA bill, there is substantial pressure upon the sitting government to take meaningful action to reduce online hate speech on social media platforms.

The Communications Legislation Amendment Bill 2023, commonly referred to as the ACMA Bill, aims to put in place legally enforceable definitions of important terms like "misinformation," "disinformation," and "harm." It also gives the ACMA the power to enforce record-keeping and reporting rules, requiring social media platforms to keep specific records and compelling them to inform the ACMA regarding the nature of potentially violating content.

It will also have the power to impose fines well into the millions of dollars on platforms should they fail to comply with record-keeping or reporting requirements, or requests by the ACMA for data within the scope of the legislation.

The government has sought feedback on the bill, which has been substantial and, at times, quite vocal. MPs from every party have praised the bill as a long-needed stopgap to quell the impacts of both the commercial dominance of large internet advertising and commerce platforms and the torrents of confusion and controversy enabled by social media; others, including citizens, have voiced concerns over the potential grey areas in the definitions of important terms like harm and misinformation.

Oddly enough, Google has even supported the bill. When confronted by Liberal MP Andrew Bragg with claims from the Digital Information Group (DIGI) that the legislation would require substantial action on Google's part, the company's government relations representative was quoted as saying, "While we certainly support DIGI submission, we are as a company of the view ACMA can be enhanced by the powers foreseen in the misinformation bill, enforcing the misinformation and disinformation code we are proud to have been one of the first signatories of."

But there are, of course, dissenters from the apparent consensus, both in and outside of Parliament House. Liberal MP David Coleman says the legislation "needs to be thrown into the bin now," citing concerns that too much interference from the ACMA in social media discourse could have a chilling effect on free speech by encouraging internet platforms to self-regulate to an extreme degree to avoid further regulation and avoid fees. He also cites the worrying precedent set by the government being granted the power to define misinformation and the troublesome potential for the ACMA to require individuals to report, with the consequence for non-compliance allegedly rising over $8,000 per day.

Will the bill pass? Will social media platforms be regulated into a more assailable position for competitors? Will free speech suffer at the whims of ACMA? We can't know yet. For now, as citizens, all we can do is pay closer attention to the contents of the bill as they evolve and voice our opinions on the current government's policies with our votes - after all, the true spirit of democracy lies in the accountability of a government to its people for its policies, whether they be good or bad.