Regulating Misinformation

Professor Uri Gal argues (Law News 17 June 2022; The Conversation 10 June 2022) that the time has come for legislative control of big high-tech companies. He observes that the policies of companies such as Meta (Facebook), Google and Twitter can affect the well-being of individuals and the country as a whole. He claims that concerns about the harm caused by misinformation on these platforms have been raised in relation to the Convid-19 pandemic, federal elections (in Australia) and climate change among other issues. He argues that legislative standards will hold these companies to account for harmful content on their platforms.

Professor Gal writes from an Australian standpoint. As it happens the yet to be enacted Online Privacy Bill (Aust) proposes to impose higher levels of regulation on online platforms and social media networks. In New Zealand the provisions of the Harmful Digital Communications Act 2015 provide relief for individuals who are harmed by electronic communications and provide for criminal penalties for those posting content with the intention of causing harm or those who post intimate images without consent.

Professor Gal’s issue seems to be with misinformation. At one point in his piece he poses the question “What is misinformation?” but fails to provide any definition.

The term “misinformation” is a curious one. It is frequently used in commentary, especially in the context of the Covid pandemic. It has been used in a number of official publications (The Edge of the Infodemic: Challenging Misinformation in Aotearoa New Zealand; Sustaining Aotearoa as a Cohesive Society). In those publications it has not been defined. It seems to be assumed that its meaning is understood. Yet the way in which it is used seems to suggest that it is a veto word and that the subject matter to which it refers is to be discounted as “misinformation” without further explanation.

The Disinformation Project has provided definitions of misinformation and disinformation in the paper “The murmuration of information disorders: Aotearoa New Zealand’s mis- and disinformation ecologies and the Parliament Protest”. Misinformation is defined as “false information that people didn’t create with the intent to hurt others”. The wording is clumsy. I think what is meant is “false information that people created without the intention to hurt others”. Interestingly nothing is said about dissemination but I assume that is a given.

Disinformation is defined as “false information created with the intention of harming a person, group, or organisation, or even a company”. The paper goes further and defines malinformation as “true information used with ill intent.” The source for these definitions is given as Jess Berentson-Shaw and Marianne Elliot, “Misinformation and Covid-19: A Briefing for Media,” (Wellington: The Workshop, 2020).

The definitions deployed by the Disinformation Project writers seem to focus upon the intention associated with the content associated with falseness of the information communicated. But then the waters are muddied with the addition of true information communicated with a particular intention. The law places high value on truth. For example it is an answer to defamation. I wonder therefore if the concerns of the Disinformation Project are more focused on the consequences of “mis-dis-mal-information” rather than its quality.

As I have said elsewhere the current drive against “misinformation” seems to me to be another attack of the freedom of expression and upon the ability to express views that may be contrary to those of the majority. A justification for this is often cited as the need for “social cohesion” – another term for blind conformity – but in reality it is really yet another manifestation of well-meaning but misguided “liberals” who know better than everyone else what is good for them. Of more concern must be the way in which “misinformation” is being perceived as a national security issue, attracting the attention and scrutiny of the current Government.

What is more concerning is the apparent drive to restrict the freedom of expression by defining certain forms of expression as harmful.

I have earlier suggested that the term “hate speech” should be abandoned for the more precise label of dangerous speech – speech that incites or encourages physical harm against a group or individual. In that way and with precision in definition any assault on the freedom of expression is limited.

The Harmful Digital Communications Act 2015 addresses harmful speech by way of electronic communication. Harm in that legislation is defined as serious emotional distress.

But can the broad and ill-defined term “misinformation” be the subject of regulation of legislation either directly or by attacking the platform upon which it appears?

Certainly, there have been frequent efforts by the State to control the medium of communication – the printing press and the trade associated with it were the subject of attack on frequent occasions. The State has interfered with other communications innovations such as radio and television so it is not surprising that there should be efforts affoot to address Internet based platforms.

Professor Gal, like many others, advocates legislating for informational standards focussing on misinformation or disinformation. This is an attack on freedom of expression. He and others who advocate similarly would do well to remember that there is a right to free expression, a presumption in favour of it and weighty considerations in terms of harms have to be advanced by those who seek to curtail it. Stifling contentious debate in favour of a “party” or “government” line by labelling the contrary view as misinformation or disinformation, in my opinion, is not good reason enough.