In this episode of Australia Censored, leading Australian legal expert, Dr Rocco Loiacono, discusses how the federal government’s proposed ‘misinformation’ laws compare to other international censorship initiatives, and how such legislation would have had a damaging effect on debate if it were in place during the Covid-19 pandemic or the Voice to Parliament Referendum.
Below is a transcript of the show.
John Storey:
Hello and welcome to another episode of Australia Censored. My name is John Storey, director of law and policy at the Institute of Public Affairs. There has been a lot of developments in Australia recently on the free speech front. To talk all about it, I’m very pleased to be joined by Dr. Rocco Loiacono, a senior lecturer in the Curtin University Law School, and a regular contributor to Sky News and the Spectator Australia. Rocco, welcome to the show.
Rocco Loiacono:
Hi, John. Thank you for having me.
John Storey:
Rocco, the big news has been the introduction into parliament of the government’s long-awaited misinformation and disinformation bill. Your most recent article on Sky News made some great points about this bill, I thought. Before we get into some of the details, could you please share your general thoughts on this idea of regulating so-called misinformation?
Rocco Loiacono:
Thanks, John. Look, when I saw this, initially, it reminded me of the word propaganda, which as most of your listeners and viewers would be aware, is actually Italian word, which was invented by Mussolini, the whole idea of propaganda in order to disseminate and propagate, which is where the word comes from, determine certain ideas in the public mindset, and that’s exactly what this misinformation-disinformation bill is all about. It’s basically to ensure that certain ideas are removed from the public domain and only other ideas that are preferred by the government are allowed to be disseminated amongst the public. In other words, censorship.
John Storey:
Yeah, that’s a great insight. I know you’re a translation expert, so that’s a good insight, and that’s to me exactly how this bill operates. In order to limit misinformation, you have to have a rule that says, well, what is true or what is false. Ultimately, this concept of misinformation comes down to that, what is true and what is false. If social media companies are going to be fined for allowing misinformation, they will take their cue from government of the day as to what they believe is true or false.
Rocco Loiacono:
Look, we’ve already seen that. I mean, we saw Zuckerberg, Mark Zuckerberg admit recently that he took his cues from the Biden administration when it came to censoring information on COVID-19. The social media companies have got form when it comes to this, haven’t they? I mean, YouTube has no qualms about demonetizing and taking people down when they put views up there that censors don’t agree with or find harmful or offensive. So the financial incentive is there for social media companies by which of the big stick the government is trying to wield to decide what’s true and what’s not.
John Storey:
Yeah. It’s interesting, it’s when one of the big social media companies, Twitter, now X, broke away from the herd, broke away somewhat from the sort of censor first approach that governments started to get involved and say, “Oh, we actually don’t like a social media platform where you can say absolutely whatever you like.”
Rocco Loiacono:
Yeah, that’s right. It reminded me of a story that Konstantin Kysin told when he was out in Australia earlier on this year when he spoke about the origin of the term politically correct. He said, “It more or less emanates from the Soviet days when if someone expressed a view that was not liked by the party hierarchy, they were pulled and silent and said, ‘What you might be seeing is true, comrade, but it’s not politically correct.’ ” With apologies for the impersonation of the Russian accent, but that’s exactly what this is. I mean, it’s governments just trying to control the narrative and eliminate criticism of what they’re doing.
John Storey:
Well, the IPA has put a submission into the parliamentary inquiry that’s currently on foot for the new version of the bill. We’ll get to the bill in a second, but that’s a point we made in our submission that the truth is no defence under these laws because they cover the definition of misinformation is false and misleading and deceptive. Things can be misleading and deceptive that are actually true if it’s, for example, certain truthful information is taken out of context or not provided with its full context and that’s sort of thing. So it’s actually not about truth or falsehood, it’s about what’s acceptable.
Rocco Loiacono:
Look, there’s an old saying, “The truth initially is ridiculed only later on to be found to be self-evident.” How many episodes in history have we seen where contentions have been lambasted only later on to be found to be true? William McBride, the obstetrician who spoke about thalidomide, comes to mind. When he called it out, he was ostracised by his medical professionals. He had his practise licence taken away from him only later on to be shown that, hang on, if you give thalidomide to pregnant women to stop morning sickness, their babies will be born deformed. To have this idea that there’s a sole arbiter of truth has never worked in our liberal democracy because you can only work out whether something is true or not if you’re subjected to sustained debate.
John Storey:
Yeah. Well, that might be a good segue to start drilling into some of the details of the new bill that’s been introduced before Parliament. We’re going to get minimal debate before there’ll be a vote in Parliament, but politicians are swayed by public opinions, so we will see what they say. The legislation only applies to misinformation that will cause serious harm, and as you’ve said, one of those areas of serious harm is harm to public health. I would’ve thought in the health sphere, you don’t have to go back too far. It seems like health advice changes quite regularly, like things that… My children are adults now, but when they were born, what you were told for how to sleep them and feed them and whatever has already changed and they’re barely adults.
Rocco Loiacono:
You couldn’t sleep them on their tummy and then you couldn’t sleep on their back, then you couldn’t sleep on their side. I mean, exactly, it changed from a minute to minute.
John Storey:
Yeah. I’ve read somewhere that on… I’m happy to be fact-checked on this, and they said, “Sudden infant death syndrome is genetic anyway, and how you sleep them is irrelevant.” That’s fine if it changes because of new evidence. That’s how it should work. But this idea, it just seems to me that the fact that public health is one of the items, it just seems to me that’s fraught with danger that we’re going to have an established truth on what is or isn’t health advice and the government will be very reluctant to deviate from that if later evidence comes along.
Another aspect that I find to this definition of serious harm, again starting to drill into the details a little bit, it seems to me that the sorts of things that people might obviously think of as or the majority of people would think of is clearly false or wrong, I’m thinking about flat earthers and people who deny the moon landing happened, and although I’ll probably get in trouble for saying that. But those sorts of things where people say, “Well, that’s clearly nonsense or whatever, that’s a clear falsehood,” none of them I can see could really cause any serious harm. They’re not going to affect the Australian economy. They’re not going to affect public health. They’re not going to vilify a certain minority group.
It’s the ones that are contentious where you could say, “Well, this is going to cause harm.” Should you lock down or not lock down? Should you wear masks or not wear masks? Was the Hunter Biden laptop story true or false? These are the things that can sway elections, can really influence public policy, but they are the ones that are the most fiercely debated and there is no established truth. It seems to me it’s almost counterintuitive that the more important an issue is, the more likely it could cause harm, but the more likely it is to be seriously debated and therefore impossible to prove whether it’s misinformation or not.
Rocco Loiacono:
It’s always been that way. I mean, you can go back to Ancient Greece and Socrates and Plato, and the issues that affected Ancient Greece back in those days were hotly debated and contested. You could go throughout history. What about this heading into the start of the Second World War? It was the established line that, look, if Germany wants to take the Rhineland or the sedentary land, who cares because they’re Germans anyway. It was all about trying to preserve peace for our time. It was only a lone voice in the form of Winston Churchill that was warning of the dangers of appeasement. Of course, in the end, he was proved right.
So it might be something that even 80 to 90% of the people would be on board with. A contrary voice might be seen as misinformation, but at the end of the day, it’s that contrary voice that you need to stop people and say, “Well, hang on a minute. We are all just rushing down this road, but maybe what we’re doing is not exactly in the best interests of public health or public safety or society or society generally.” You need those contrary voices to present that alternative view. Over the way, if you can through debate and over by producing evidence, if what the contrary voice is saying is wrong, well, then you can easily dismiss it by showing, “Hey, look, hang on, this is not right.”
But in terms of these issues, these hot issues that might, as you point out, swing elections, they’re the ones that the people need to be best informed about. They’re the ones that people need to have all the information in front of them to be able to make an informed decision. Look at the Voice last year, it was only when the information was readily made available to the public, despite the best attempts of fat checkers and RMIT and the ABC to shut people like the IPA and Peter Credlin down. It was only then that people started realising, “Hang on, maybe this isn’t such a good idea after all.” Lo and behold, we see in the legislation that they’re targeting misinformation and disinformation referendum campaigns. So you can only see why this is being done, where it’s going, and as you say that the idea is here for governments to be able to control what’s said in order to favour their preferred policy positions.
John Storey:
That’s an evocative example of would Winston Churchill have been silenced under these misinformation laws for his contrarian stance leading up to the Second World War? That leaves you thinking. The government first introduced a version of this bill as an exposure draught June last year, June 2023. There was a lot of pushback. The Law Reform Commissions and the Bar Associations and whatnot, various legal bodies suggested this would be problematic from a free speech perspective. The government said, “We’ve heard that. We’re going to make changes.” They sat on it for a long time, and they’ve finally reintroduced it, but to me, not a lot has changed. Do you want to talk us through what’s changed? What’s stayed the same?
Rocco Loiacono:
I think you’re right, John, not a lot has changed at all. There was a statement I believe put out by the Minister that the concerns of some of the religious organisations had been addressed in terms of them being able to preach the tenets of their faith without it being called out as misinformation, for example, on views on sexuality and marriage and things like that. But I see today the church of Bishop Mari Emmanuel, who was stabbed last year, has put in a submission saying that the bill is wrong. If I could just, I’ll just, if it’s all right, read from the submission the bishop saying, “Freedom of speech is a God given right and Christians have a right to express their beliefs. The church is now reigning against this new bill claiming that faith teaches us to seek truth and censorship should not be the solution with the misinformation bill threatening to interfere with the critical work that the church does through its online content.”
Now, of course, it was a stabbing that Julie Inman Grant took down immediately and tried to get a ban on it worldwide. But it’s not just Bishop Mari Emmanuel saying that the misinformation, this new version of the bill threatens religious freedom, it’s the Australian Catholic Bishops Conference, and they suggest that the bill, as now presented, would leave a question mark of what would be considered reasonable religious belief in terms of some people would consider elements of religious belief to be misinformation.
Now, the traditional view on marriage, the traditional view on gender, we’re still seeing that being called out as misinformation. We’re still seeing issues and contention such as this whole gender fluidity debate in kids causing serious mental harm if they don’t take puberty blockers and undergo sex changes at very early ages. That’s been called out as misinformation, but we saw the WPATH files earlier in the year call that out and say, “Mow, hang on, what’s being said is actually true. We do have evidence that forcing kids onto puberty blocker is harmful to their health, and later on they regret it.” So for the government now, the bill is currently presented. It now has the government basically being now the religious affairs commissioner potentially as it was back in the old Soviet Union. So I don’t think much has changed in the bill at all. It’s just as bad, if not worse as it was before.
John Storey:
Yeah, I think that was probably the most hyped change that the government said they were going to make was to add some religious protections. It’s a couple of words. It says it’ll protect content of a religious purpose, which raises the question, well, what’s a religious purpose? I mean, presumably quoting scripture, you’re not going to get fact-checked. But as you said, what if you are religiously motivated? What if you make unpopular political opinions based on your religious beliefs? Are they captured? Then that raises the question what if someone is opposed to gender theory and what’s being done in this trans space, particularly when it comes to children and biological men in women’s sports and all that? People can object to that for non-religious reasons. Why should one be allowed and the other? It seems like it raises a bigger can of worms by adding that apparent exemption. As you said, it invites the courts to then say, well, what is it or isn’t a legitimate religious purpose, which I think that’s a dangerous place for a secular society to want to be going down.
Rocco Loiacono:
Yeah. I mean, do we want the courts to determine, as you say, in a liberal society what is religious belief? I don’t think the courts want to do that, frankly, and I don’t think any sensible person would want a government official determining what is or what isn’t religious belief. It reminds me of the conscription debates back in the First World War when the leading figure against conscription was Archbishop Mannix, the Catholic Archbishop in Melbourne. Now, I’m sure Billy Hughes at the time thought of that line from Henry II, “Who would rid me of this troublesome priest?” But exactly, is that what we want in our society for people?
Look, we might disagree. On issues like sexuality, abortion, all those kind of things, you’re going to get hot disagreement because they’re emotional issues, they’re emotive issues and they’re religious issues, but that’s the way it’s always been. For a government to come in and say, “Well, hang on a second, we are going to say what’s right and what’s wrong as far as this is concerned,” when people have legitimately held diametrically imposed views on issues like that is the antithesis of what democracy is supposed to be about.
John Storey:
Yeah, it’s meant to be the clash of ideas and the best idea prevails, not the banning of a disfavored idea. I read in your Sky News article that you felt the motivation behind this legislation very much flowed from the outcome of the Voice referendum debate, and you allude to the fact that harm to a referendum process is one of the specific categories of harm that the law targets was also clear on the very night of the referendum that the various yes side activists were blaming misinformation. I wonder if you could talk about that and what broader motivations there could be behind these laws. I know you’ve looked at some international comparisons as well.
Rocco Loiacono:
First of all, in terms of motivations, it’s a bit like the adolescent dummy spit, right? We didn’t get our way, so it’s not our fault. It was all the other side was spewing lies, and they won by being underhanded and deceitful. Whereas in a debate, whoever wins, wins fair and square. Look, the Voice, and I’m sure I don’t need to go through that the idea, but it was a bad idea. In a debate, you’ve got good ideas and bad ideas, and the bad ideas will be shown up to be bad ideas and this was shown up to be a bad idea.
Can you imagine Sir Robert Menzies back in the day when he tried to ban the Communist Party, and he lost rightly, in my view, and rightly in John Howe’s view, by the way, to ban the Communist Party? He didn’t blame it on misinformation or disinformation or the people getting it wrong. He just said, “Okay. Right.” He took it on the chin, and moved on and became longer serving prime minister of the country. Whereas at the moment, that seems to have been the voice loss is where this seems to have been considered by many commentators where this government has just completely lost its way. I mean, I would argue it was never on the right track anyway.
But it’s this idea that the people get it wrong. The elites know what’s best, and therefore we can determine what’s right and what’s wrong. That’s the philosophy, or if you like, the way this idea is grounded, that look, people are too silly, too stupid to think for themselves, so we need to tell them what’s good for them rather than actually ask them what they think is good for them. That’s where I think this is. That’s the real idea behind it, which is a very internalistic, very socialist idea at the end of the day. That’s the real motivation behind this. Look, we can’t trust the people to get it right, so we’ll have to sort it out for them.
John Storey:
Yeah. I think lawyers, we’re both lawyers, can be a little bit prone to that. Having said that, I recently read the Victorian Bar Association’s submission to the parliamentary inquiry, which was excellent.
Rocco Loiacono:
Excellent submission.
John Storey:
Yeah, went through the various problems from a free speech perspective. I think that was excellent. But I have also read a number of lawyers who I feel are quite enamoured with the idea of censorship because they assume that they’ll be the censors. They’ll be the ones that are the so-called experts who will be able to determine what is misinformation. It’s not just lawyers. They call it managerialism, but I would also call it credentialism. We have this real big push for a lot of people to go to university and get a credential that says, “I’m an expert in this field.” I think coming with that can be a little loss of humility over, “Maybe I don’t have all the answers, even though I’m an expert in my field,” and maybe there are competing arguments that that should be aired. It’s that sense that, “Yes. No, no, we know best and this is wrong. If the people think otherwise, it’s because they’re misguided and they could only be misguided because of that horrible Elon Musk allowing people to say things online.”
Rocco Loiacono:
Yeah, exactly. We talk about trying to not only close this idea that you can have a difference of opinion, but also determining what is scientifically correct, what’s culturally correct in a society. That is where this is all coming from, even though these are ideas which are scientifically and culturally been determined for thousands of years, biology being one of them. I mean, we have the term biological male and biological female being called out as misinformation, and this is the ridiculousness to which this is getting. Yeah. When you talk about people being self-appointed experts, well, it was said to me a very long time ago that a smart man knows his limits. What’s that line from one of those Dirty Harry movies? “A man’s got to know his limitations.” Well, that’s it. We can’t be experts on everything. We can’t be. It’s like me trying to, I don’t know, instal an oven. I call a plumber for that. So you’ve got to know what your limits are. When you try and assume knowledge and areas where you should really be calling different views, that to me is almost negligent, really.
John Storey:
Yeah. That’s a big problem. We’ve got this credentialed class who can be extremely knowledgeable in a certain narrow field, but that it may not have a broader perspective. Look, this frustrated me no end during COVID that we had these hugely invasive public policy measures put in place on the basis of expert advice. Now, of course, I’ve got no doubt that the experts, the government consulted were experts at epidemiology and that sort of thing, but we were talking about weighing up human rights and childhood development and economic issues.
There’s no expert in all those things who you can simply say they have the view. The benefit of a democracy is that you get a broad range of perspectives. Some are a bit wacky and kooky, some are well considered, but you take the collective wisdom of the crowd, and that’s where you get the optimal outcomes sort of thing. COVID was very much we are doing this because of the experts, where those experts, they can’t possibly be in a position to weigh up how important is to wear a mask in a shopping centre compared to human rights and freedom of expression. There’s just no expert that can make that balance.
Rocco Loiacono:
Yeah. We gave them or the government gave them this idea of omniscience, this position of omniscience when that just clearly, as you point out, just isn’t the case. You cannot expect an immunologist to know about childhood development. I mean, it might have a couple of ideas just generally like we all would, but that just we listened, or the government basically took the view of immunologists and epidemiologists and ignored the rest. I remember very early on when this nonsense started happening, the then president of the Australian Medical Association, Andrew Miller, went on Patricia Karvelas on the ABC and said, “Oh, look, the government and the politicians have got to get it out of the way and just leave it to us because we are the experts. We’ll decide what happens here,” a dictatorship of the health bureaucracy.
That completely ignored the fact that over time, it’s like you say, you get different ends of the spectrum. One end you’ve got nonsense and another end, you’ve got nonsense. But it’s only through debate and a proper assessment of everything that’s put before you they can say, “Well, look, this is where we get a more optimised outcome.” Again, any voices that were contrary to the established narrative we’re censored like Jay Bhattacharya, but they’re being proved true. You want to talk about misinformation and disinformation. The government is the biggest purveyor of misinformation and disinformation there is, and they’re still trying to tell us that COVID vaccines are safe and effective. AstraZeneca, it’s pulled its COVID vaccine worldwide, and we have no explanation for these excess deaths that are occurring, which are at all time highs. Now that we can have this regime in place, you can’t actually call out the government for putting out things that are wrong or misinformation or disinformation that are disinforming the public.
John Storey:
Yeah, it’s really disappointing that these laws have taken root in Australia, but it’s certainly not limited to Australia. There’s been some concerning international developments. The one that’s grabbed headlines, probably most concerningly, is in the United Kingdom where they’re literally… The prisons are full, but they’re releasing convicted violent criminals who have not served their full term to be able to put people in who have said things online that are deemed to be offensive and have breached various hate speech laws during recent rioting and unrest. I know you’ve looked at the international scene. Where does Australia’s law sit in the bigger picture?
Rocco Loiacono:
Interestingly, you mentioned the UK laws. They had a provision in the original bill, which mirrors the Australian version of the harmful but not legal, or the legal but harmful provision, which was actually taken out, removed from the UK bill. But as you say, even so, people are being imprisoned for saying things online, which people find offensive, yet the UK police can’t solve a burglary. So this is the effect of these kind of laws. I’ve had a look at a couple of things. Just recently, Gavin Newsom signed a bill about AI in California. He said here, “You can no longer knowingly distribute an ad or election communications that contain materially deceptive content, including deepfakes.” So he wants to remove deepfakes and ensure companies take down all these videos to avoid government penalties. He’s now being sued by a person by the name of Christopher Kohls who created a deepfake or a satirical Harris ad.
This is the kind of road we’re heading down. I mean, this kind of stuff’s particularly aimed… The Democrats over in the US have been sprouting misinformation and disinformation since 2016, of course, with Russia and collusion and all of that. It’s interesting that those laws here are starting to mimic what we’re seeing over there. But if I could just bring up the European EU guidelines, you have a look at that disinformation is a growing threat, as it says up there, to European democracies. Well, where have we heard that before? You’ve got Michelle Rolland saying that misinformation and disinformation is a threat to democracy. She’s copied that from EU commission President Ursula von der Leyen, who said that misinformation and disinformation is a greater threat to the world than climate change. So this is the kind of stuff we’re seeing online and it’s going to threaten global business.
But if I could just go down to the Code of Practise. As you can see, the original Code of Practise spoke about transparency of political advertising to empower fact checkers and researchers. Then if we scroll down a little bit further to the 2022 strengthened Code of Practise, to measures to under the Digital Services Act there in the EU to demonetize disinformation, increase transparency of political advertising, broaden and strengthen tools that empower users to detect and false flag misleading content, increase fact-checking coverage, provide researchers increase to access to data, robust monitoring of qualitative and quantitative information coming out of EU member states and creating a task force to enforce the code.
So these are exactly the kind of things that we’re seeing overseas. These, interestingly enough, are what we’re seeing, Michelle Rowland, I believe, put into this new bill that she’s introduced. It’s pretty much a copy and paste of what’s going on overseas, this whole idea that those in the know, those in power, those in privileged positions know better and can determine what is false and what is not, and can control what is in political advertising to ensure that we don’t have misleading information which threatens our democracy. Well, as we know, the irony of that is that any attempt to actually censor debate is in itself a threat to democracy, whether those ideas be ridiculous or whether those ideas are not.
John Storey:
Yeah. I mean, it’s just this Orwellian language of talking about threats to democracy, so we need to censor opinion. It is just completely turned on its head.
Rocco Loiacono:
Threatening democracy for them because they might lose their positions that at the end of the day, you can logically draw that conclusion.
John Storey:
That’s what I find. There’s a lot of twisting of language that goes on at the moment, and most famously, no one can define what a woman is anymore, but one of them is the word democracy itself, I believe, has been twisted, certainly when it’s used by various political and cultural elites. Democracy doesn’t mean anymore the process of popularly electing leaders. It’s about a certain outcome. Certain outcomes are democratic. If the outcome upholds the existing order of human rights and protection of minority groups and progress towards climate change and lowering international borders and all sorts of stuff, the process that results in that is democratic. A process that doesn’t result in that is undemocratic.
That’s how you get the absurd doublespeak of if Donald Trump wins the next election, he will be a threat to democracy. It’s like he wins an election and that’s the threat to democracy. To me, it very much comes back to what you said about Menzies saying, “Well, we had a debate. I lost, we move on.” It’s almost as if we lost the debate on Brexit, a populist like Trump was elected, in the EU, there’s right-wing parties that are pushing against immigration, pushing against climate change, and it’s like, we’ve lost the debate, so therefore the answer is to silence the other side.
Rocco Loiacono:
That just sums it up in a nutshell. It’s only one side that’s been obsessed with misinformation and disinformation and threats to democracy and trying to firm democracy. It’s only one side that’s worried about that because that’s the side that tends to lose when the people exercise their right to say, “Hang on, we don’t actually like the path you’re going down.” In democracy, that is demos kratia, government of the people by the people, for the people. When the people don’t like that outcome or when the elites don’t like that outcome, then we have to try and make sure it never happens again. Yeah. Censorship only seems to be attacking one side. As we’ve only seen, it’s only people on the right that tend to get censored, and it’s only people on the left that seem to have an obsession with trying to ensure that they save democracy.
John Storey:
Yeah. Look, the other disappointing thing about hearing what’s going on in the EU, the definition of the West was almost synonymous with freedom and that was almost what defined the concept of the West as opposed to other cultures. But it’s harder and harder to think of the West as free and liberal in that sense anymore when you’ve got the EU, the United States, much of the Anglosphere and Australia fully embracing effectively censorship.
Rocco Loiacono:
I mean, once upon a time, like you say, the West was the beacon of those ideas, and it’s thanks to probably the greatest modern embodiments of those ideas in terms of Ronald Reagan and Margaret Thatcher, that economic communism was defeated and the Berlin War came down. It was Ronald Reagan himself who said the nine most dangerous words in the English language, “I’m from the government and I’m here to help.” You could use that to describe this misinformation and disinformation bill. We defeated economic Marxism, but cultural Marxism was out there and it’s managed to survive. A bit like a reptile, you cut off one limb, but it just continues and goes on hunting, and that’s what’s happened. It’s a bit like the West let down its guard. Francis Fukuyama spoke about the end of history. We won. Liberal democracy was seen as the most superior form of government, and we won. But yeah, we let down our guard and now we find ourselves fighting to protect the most fundamental ideas of the West, and that is freedom of expression.
John Storey:
Yeah, absolutely. All buildings need a regular maintenance, and the building of Western civilization doesn’t maintain itself either. Rocco, you’ve been extremely generous with your time. Thanks for your insights. It’ll be an interesting couple of weeks until we find out where this particular bill lands in Parliament. Thanks again for all your input.
Rocco Loiacono:
Thank you for having me. It’s been a blast.
