Combatting mis and disinformation in the digital age: challenges and opportunities for Australia

In September 2024, the Albanese Labor Government introduced the Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 (Cth) (‘the Bill’) into the Commonwealth Parliament. The Bill sought to impose transparency obligations on digital platforms requiring them to make publicly available certain information about misinformation and disinformation on their services, and provided for the development of industry misinformation codes. The proposed framework marked a shift from a self-regulatory to co-regulatory model, underpinned by enhanced oversight powers for the Australian Communications and Media Authority (‘ACMA’) and enforceable obligations attracting civil penalties for non-compliance. However, concerns about efficacy and free speech led to the Bill’s abandonment. Despite broad consensus on the harms misinformation poses to health, security, our democracy and its institutions, Australia thus seems no closer to implementing a practicable, constitutionally compatible and politically viable regulatory response. Drawing on free speech theory, digital constitutionalism, and platform governance literature, this article critiques the Bill’s shortcomings and proposes instead a more holistic approach anchored in principles of transparency, accountability and user participation. Our suggested reforms – guided by comparative insights from the European Union – include mandated algorithmic transparency and intelligibility, user participation, and structural separation of decision-making powers for content moderation.