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Regulating Social Media: The Struggle Between Freedom of Expression and A True Fight

By Isabelle de La Masse-Homsy

 

Today, as I opened up my Facebook feed, I was instantly greeted with a paid Liberal campaign video calling into question the integrity of my local ALP candidate. Few hours later, another paid campaign video appeared in my Instagram stories of that same ALP candidate telling me why I should vote against the Liberals. Afterwards, as I pressed play on my favourite song on YouTube, the voice of my local Greens candidate boomed through my headphones telling me, within a paid campaign advert, that a vote for the ALP and Liberals is a vote against the environment.


Welcome to 2022! Tis’ the year for Victorians to elect a federal and state government, navigate through seemingly endless virtual political campaigns and be openly manipulated by falsehoods masquerading as truth.


Federal and Victorian laws fail to include sufficient mechanisms necessary to protect the public from political actors disseminating blatant lies about politicians’ policies on social media, in order to influence public votes. [1] The question remains – how long can these actors hide behind the cloak of freedom of expression before they are finally stopped from corrupting the battleground for who will next lead our country and state?


At the time of writing, Australia’s federal electoral law practically plays no role in prohibiting lies about politicians’ policies from being circulated within political advertising on social media. [2] Rather, the protections against misleading political advertising in the Commonwealth Electoral Act 1918 (Cth) (‘Electoral Act’) are severely limited within its scope, thereby allowing politicians to freely manipulate the Australian public. The Electoral Act merely protects the public from deceptive political communications that misguide Australians about the manner in which they are obligated to cast their vote. [3] This just prevents political parties from creating campaigns stating that the ‘right way’ to vote is for them. Consequently, politicians are able to post advertisements falsely portraying their opponents’ policies so viewers do not vote for them, without harming their party and their standing in the election. The Federal Court even reaffirmed this, by stating that section 329(1) of the Electoral Act cannot be interpreted as regulating advertisements that affect the public’s judgment of how they will cast their vote. [4]


At the time of writing, Victoria’s electoral law also plays no role in restricting the dissemination of falsehoods in political advertising regarding politicians’ policies on social media. Additionally, the Electoral Act does not prohibit politicians from partaking in ‘microtargeting’ of social media posts. ‘Microtargeting’ of social media posts refers to the manipulation of social media algorithms so voters are exposed to political campaigns catered to their inferred characteristics and interests, based on their social media activity. [7] As a result, politicians are able to microtarget misleading campaigns on social media to individuals that will effectively deter them from voting for their opponents, without them ever knowing. [8]


Since both electoral laws do not hold politicians culpable, you would hope that they would at least hold platforms responsible for disseminating misleading political advertisements, right? At least, by holding platforms responsible, the platforms would surely have to take the advertisements down? Well, they don’t. Both federal and Victorian laws do not hold social media platforms responsible since neither of them recognise social media platforms as publishers. [9] As they are not considered publishers, social media platforms are shielded from liability for deceptive political advertisements posted by politicians. [10]


With the law’s continual failure to not hold users nor platforms responsible for misleading political advertisements, the fight for who will control our country and state remains on treacherous grounds. We’re supposed to trust the people that get into power but how can we when we don’t know whether they got there because of merit or pure deceit?


Australia and Victoria should follow ACT and South Australia’s (SA) lead and adopt truth in laws pertaining to advertising, as they have successfully reduced the number of misleading political advertisements on social media. [11] For instance, a couple of months ago, ALP was forced, under SA’s law, to withdraw a misleading advertisement regarding ambulance ramping and to publish statements recognising that this claim was false. [12] Failure to address political advertising will otherwise leave the door open for a repeat of the 2019 federal election, [13] which involved numerous LNP, UAP and Liberal politicians sharing various campaign posts, on their Facebook pages, proclaiming that the ALP intended to introduce an inheritance and new car tax should they form government. [14] In actuality, the ALP never held any policies to introduce a new car nor inheritance tax. [15] Testimonies from politicians indicate that these posts deterred people from voting for the ALP out of fear that these taxes would be implemented. [16] Brain Owler, the ALP candidate for the NSW seat of Bennelong, asserted that these posts “were a big tide [they] were pushing against” as he “was still explaining to people on election day that there was no death tax.” [17]


So, my fellow Victorians, over this next week, as we all are seemingly unable to escape the onslaught of political campaigns plastered over our social media pages – remember to protect your vote by questioning what you see, because no one else is.


 

References

[1] Katharine Murphy, ‘Breaking up social media giants an option to deal with misinformation, Labor says’, The Guardian, (online, 6 December 2019) <https://www.theguardian.com/world/2019/dec/06/breaking-up-social-media-giants-an-option-to-deal-with-misinformation-labor-says>.

[2] ‘Electoral Backgrounder: electoral communications and authorisation requirements’, Australian Electoral Commission (Web Page) <https://www.aec.gov.au/about_aec/Publications/Backgrounders/authorisation.htm>.

[3] Commonwealth Electoral Act 1918 (Cth) s 329(1).

[4] Peebles v Honourable Tony Burke [2010] FCA 838.

[5] Electoral Act 2002 (Vic) s 84; Victorian Electoral Commission, EMC Submission No 77 to Electoral Matters Committee, Parliament of Victoria, Inquiry into the impact of social media on elections and electoral administration (29 September 2020) 7.

[6] Richard Willingham, ‘Social media giants warned to prevent fake accounts from polluting political debate by Victorian parliamentary inquiry’, ABC News, (online, 14 September 2021) <https://www.abc.net.au/news/2021-09-14/social-media-fake-accounts-political-regulation-victoria/100460000>.

[7] Ibid.

[8] Ibid.

[9] See ibid; Victorian Electoral Commission, (n 5) 31; Fairfax Media Publications Pty Ltd v Voller Nationwide News Pty Limited v Voller Australian News Channel Pty Ltd v Voller [2021] HCA 27, 33 [103].

[10] Ibid.

[11] Bill Browne, ‘Impact of social media on elections and electoral administration: submission’, Governance & Government Agencies, (Report, 18 November 2020) 3 <https://australiainstitute.org.au/report/impact-of-social-media-on-elections-and-electoral-administration-submission/>.

[12] ‘Labour told to withdraw ‘inaccurate’ South Australian election campaign ad on ambulance ramping’, ABC News, (online, 18 March 2022) <https://www.abc.net.au/news/2022-03-18/sa-labor-told-to-drop-ramping-claim-in-election-ad/100919850>.

[13] Katharine Murphy, ‘Breaking up social media giants an option to deal with misinformation, Labor says’, The Guardian, (online, 6 December 2019) <https://www.theguardian.com/world/2019/dec/06/breaking-up-social-media-giants-an-option-to-deal-with-misinformation-labor-says>.

[14] Katharine Murphy, Christopher Knaus and Nick Evershed, ‘‘It felt like a big tide’: how the death tax lie infected Australia’s election campaign’, The Guardian, (online, 8 June 2019) <https://www.theguardian.com/australia-news/2019/jun/08/it-felt-like-a-big-tide-how-the-death-tax-lie-infected-australias-election-campaign>.

[15] Ibid.

[16] Ibid.

[17] Ibid.


 

Isabelle de La Masse-Homsy is a third year LLB(Hons) / BA (Communications and Media Studies) student at Monash University. Isabelle is especially interested in the intersectionality of justice with the respective realms of media and sports. She is eager to learn more about whether and how the institutional structures of the media and sports industries confer justice and sufficient protections on minority groups, whilst our world becomes more technologically advanced and globalised each day.


As one of Monash Student Association’s Environment and Social Justice Officers for 2022, she hopes to help shape the university landscape into one that is more eco-friendly and allows all students to become better global activists, through providing informative resources and events.



















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