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The referendum is behind us, but the political debate has raged on. A key feature has been heightened discussion about the role of misinformation and disinformation – that is, the circulation of false and harmful wrong information, whether deliberate (‘dis’) or not (‘mis’).

That issue has been bubbling away for a long time, but is coming to a head with a Government proposal to crack down on harmful and misleading content online.

While this idea might have broad support in theory, the Government has encountered difficulties striking the balance between reducing harm and preserving free speech.

The debate will heat up in the coming months as the Government prepares to bring its proposal to Parliament, where it does not appear to have enough support to be passed. In today’s newsletter, I explore why the issue is more complicated than it might sound.

As the dust settles on the Voice referendum, there has been much discussion about the reason for the resounding ‘no’ vote. One suggestion made by many ‘yes’ supporters is that misinformation and disinformation played a crucial role.

A statement released by First Nations ‘yes’ leaders earlier this week said “the scale of deliberate disinformation and misinformation was unprecedented, and it proliferated, unchecked, on social media, repeated in mainstream media and unleashed a tsunami of racism against our people.”

It’s an accusation rejected by the ‘no’ campaign – on referendum night, leading ‘no’ campaigner Jacinta Nampijinpa Price pushed back on suggestions of misinformation by calling the ‘yes’ campaign “a campaign of no information whatsoever”.

But accusations about misinformation and disinformation are not new, and certainly not limited to the Voice. Fears about misleading content on social media have been around as long as these platforms have existed – a desire to fight back against this misleading content is the reason The Daily Aus exists.

However, while there is almost universal agreement about the problem, attempts to find a solution can be fraught. A current attempt by the Government to combat misinformation and disinformation illustrates why.

The Government is proposing to legislate a crackdown on online misinformation and disinformation. A draft was released in June for public consultation, but it has received widespread criticism.

The difficulties begin with questions as simple as how to define the problem.

The common definition of misinformation and disinformation goes something like this: misinformation is wrong but can be unintentional, while disinformation is intentionally wrong and designed to mislead. As a simple rule, ‘mis’ is a mistake, ‘dis’ is deliberate.

That definition is useful, but legal definitions need to be more precise. The Government defines misinformation as “information that is false, misleading or deceptive… [and] reasonably likely to cause or contribute to serious harm”.

Its definition for disinformation is the same with the addition that “the person disseminating… the content intends that the content deceive another person”.

The Government’s plan is to allow the Australian Communications and Media Authority (ACMA) to hold online platforms accountable for misinformation and disinformation that meets this definition.

ACMA could not request specific content be removed, but it could require platforms to follow certain guidelines, such as policies for removing or banning users. There would be exceptions for news, satire, and content produced by governments and educational institutions.

The Australian Human Rights Commission is concerned this definition is too broad and threatens freedom of speech. Specifically, Commissioner Lorraine Finlay is worried about the words “reasonably likely to cause or contribute to serious harm”.

The Government’s proposal does not define what “harm” is, and Finlay argues the wording “cause or contribute” could catch content which makes a very minor contribution to harm, such as an individual expressing a political opinion.

“There are inherent dangers in allowing any one body – whether it be a government department or social media platform – to determine what is and is not censored content,” Finlay argues. “The risk here is that efforts to combat misinformation and disinformation could be used to legitimise attempts to restrict public debate and censor unpopular opinions.”

Similar criticisms have been expressed by the Australian Law Council, the Media Entertainment and Arts Alliance (a union representing journalists), and the Coalition. Shadow Communications Minister David Coleman said the Government should “rip it up… it would lead to digital companies self-censoring the legitimately held views of Australians to avoid the risk of massive fines.” The Greens have expressed a different concern – that news companies should be included in the laws.

Communications Minister Michelle Rowland has welcomed the feedback and suggested the Government will seek to improve its draft bill. Rowland has acknowledged the importance of striking the right balance, but has remained determined to push ahead. “Harmful misinformation and disinformation is something that we simply can’t have a do-nothing attitude to,” Rowland said at a press conference last month.

Rowland also cited surveys that suggest 70% of Australians are concerned about misinformation and disinformation. But as is often the case in politics, it’s much easier to get agreement about the problem than the solution.

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