The federal government’s new Misinformation and Disinformation Bill poses a series threat to Australians’ freedom of speech and expression. I’ve experienced first-hand what this law could do to anyone.
You see I’ve been Facebook ‘fact checked’ and ‘cancelled’ (through someone else’s Facebook page!) The way what I’ve said has been treated is what would be required at law.
On one level, I suppose I should be flattered because what I’ve said must be considered so significant by Facebook and its outsourced fact-checkers that it needs to be ‘cancelled’. On another level, I can provide a case study in the operations of the ‘thought police’.
I wrote about this pending ‘truth’ law in a recent Substack postDangerous Misinformation – Covid-19 came from the Wuhan Lab. In summary, the law will force digital platforms (Facebook, etc.) to be the determiners of what is ‘true’. The law will require digital platforms to block and close down views, information, and opinions that are declared false and dangerous by the digital platforms’ ‘truth police’.
In effect, the law will require Facebook and other social media platforms to do what some are already doing—that is, being determiners of what is ‘true’ as announced by their outsourced ‘fact-checkers’. And as a consequence only allowing on their platforms information and opinions that fit with the platforms’ determination of ‘truth’. The government says that it will play no part in deciding what ‘the truth is!’ Ummm!
Understand that not all platforms run ‘truth’ checking. That is, opinions that are considered ‘dangerous’ on one platform can still appear on a different platform. But this law would require all platforms to act in the same way.
Given that my personal experience at being cancelled is with Facebook, I can supply detail of that example. And given that this has affected me personally, I’ve tried below to be as ‘factual’ and clinical as possible.
To understand Facebook’s ‘fact’-checking process it’s necessary to outline the specifics of this case that Facebook chose to cancel.
The legal action -Not Above the Law
This particular fact check/cancel exercise concerns a 26-minute video interview posted on Facebook by a member of the public. In the video I and the chair of Self-Employed Australia (SEA) (who is a lawyer), had explained and discussed the outcome of an application SEA had made to the Victorian Supreme Court in 2022. Many of my you, my Substack followers, will have followed the 2 plus years saga of my efforts on this.
SEA had asked the Court to make an order requiring WorkSafe Victoria to investigate whether individuals and entities we had named had breached work safety laws over the disastrous 2020 Victorian Covid hotel quarantine program. The program led to 801 deaths and was the subject of the Coate Inquiry Report (December 2020).
SEA’s application for the court order was lodged on 4 February 2022. The judgement was issued on 2 December 2022. SEA’s website has a dedicated page providing full details of the issue, the application and the outcome.
The Court ruled that SEA had not made the application within the 60 days required under Victorian Supreme Court rules and that therefore the application could not be heard. This ‘time’ issue was (curiously and unusually) raised by the judge, not WorkSafe’s lawyers. SEA rejected (and continues to reject) the Court’s decision which required the judge to pick a date by which the ‘clock started ticking’ for the 60 days. SEA says that the “trigger date” date is wrong. That’s our opinion and it’s perfectly normal and legitimate for opinions to be expressed on a court judgment.
The Court, however, has the discretion to extend that 60-day time limit. Considerations for doing so include the public interest. In rejecting such dispensation, the judge made the following statement in the judgement:
“If SEA is not granted an extension of time the individuals referred to in the First Request will be freed from the not insignificant stress of potentially being subjected to prosecution for serious criminal offences… the 20 individuals identified in the First Request may suffer considerable prejudice if SEA is granted an extension of time…”[emphasis added]
That is, the opinion could be reasonably formed that the judge was commenting that if a person subject to potential prosecution was under stress, then that was a reason not to proceed. Mind you, the application before the judge was not to require a prosecution but to require an investigation.
It was this ‘stress’ statement by the judge and SEA’s comment on it that seems to have attracted the attention of Facebook’s truth police.
In the recorded video interview that the SEA chairman and I had conducted, we laid out the facts that the judge relied on for his decision and expressed our opinion as to why the ruling was wrong. Again, it is perfectly legitimate to form and express opinions on court rulings. This occurs all the time and is an essential part of an open and vibrant ‘rule of law’ society.
Further, we mused over the interesting idea that possible ‘stress’ of an accused could be a reason for not prosecuting. In addition, SEA’s ‘Not above the Law’ website page on the issue sets out in considerable detail the campaign to seek investigation, the reasons why, the court application, the ruling against SEA’s application and SEA’s responses and opinions on that.
In summary, the entire court process was a legal action by SEA to require Worksafe Victoria to comply with WorkSafe’s statutory obligation to investigate.
The video mentioned above then came to the attention of Facebook.
A member of the public, unknown at the time to SEA, posted the SEA video interview on their personal Facebook page on 9 May 2023. On 7 June 2023, Facebook inserted into that person’s Facebook page a ‘fact check’ alleging the video ‘could mislead people’.
Further, the Facebook insertion made a threat about Facebook’s treatment of the person’s Facebook page saying they “….might have their posts moved lower in News Feed so other people are less likely to see them”. A screen shot of the Facebook’s insertion is here. The ‘threat’ would seem to be a ‘threat’ to cancel the individual’s Facebook page and in turn SEA’s video discussion.
Here, then, is arguably a good example of exactly what Facebook is currently doing and what it and all other platforms will be required to do if the Misinformation and Disinformation Bill becomes law. The law will require digital platforms to be “…accountable for improving and implementing measures to counter the spread of misinformation or disinformation”. What is ‘misinformation or disinformation’ is not explained in the proposed law. The proposed ‘definition’ is anything but a ‘definition’.
Now to the detail of Facebook’s ‘truth’-policing process.
Facebook has outsourced its factchecking to at least one third party in Australia, AAP FactCheck. It says that its funding comes from “…a targeted allocation from AAP’s general newsroom budget and income earned through fact-checking work for Meta and TikTok.”
AAP FactCheck says it “…focuses on investigating claims of political significance…” and “We have no political affiliations nor agenda…” AAP FactCheck further says that when selecting a claim for investigation that it “…cannot assess personal opinion.” And “…does not assess, nor offer judgement on reportage.” It seems that investigations occur after a complaint has been made. One wonders where this complaint could have come from as this is not divulged by AAP FactCheck.
Further, AAP FactCheck states that it “…must always consider contacting the person who made the statement to ask for their supporting evidence.”
It is SEA’s opinion that AAP FactCheck analysis is wrong on several fronts and that AAP FactCheck has not followed its own guidelines in critical areas.
To begin with, AAP FactCheck says that it investigates political misinformation. We respond by saying that our Supreme Court application was entirely a legal process. The fact that one of the individuals we named as requiring investigation was the Victorian Premier is entirely a product of the fact that the Premier instigated and authorised the failed Hotel Quarantine Program. We can only assume that this makes the court application ‘political’ in the eyes of AAP FactCheck.
Our campaign and court application have always been under the banner of ‘No one is above the law’. If such a campaign is ‘political’, then almost any attempt to require government and its leaders to comply with the law must by the same reasoning be ‘political’.
In doing its analysis we can state that AAP FactCheck did not contact us to ask for our ‘supporting evidence’ or views. SEA has often been reported upon in the mainstream media. It is almost always where journalists have contacted us for our side of a story. We consider this good journalistic form.
On the Facebook page, AAP FactCheck posts its conclusion that the “Video stresses the wrong reason for Covid court case failure.” Further, on the AAP FactCheck website it states that “What was claimed: (that) Legal action against Victorian Premier Daniel Andrews failed because the judge thought it might cause him stress.”
We respond by saying that we did not claim this. The Court’s rejection of the application was clearly based on the ‘out of time’ issue. But the ‘stress’ issue was a curious issue for the judge to insert into the judgment.
The AAP FactCheck website states that “The case involved a group applying for more time to prepare an application to force ….” This is clearly wrong and misinformation on the part of AAP FactCheck. Any reading of the judgment and of SEA’s highly detailed website information on the case and judgement clearly shows that SEA’s ‘application’ was finalised and lodged on 14 February 2022 some nine months before the final court hearing. The ‘extension of time’ issue was exclusively about the judge’s discretion to extend time beyond 60 days to allow the court to hear the case. This, in our opinion, is a fairly basic piece of misinformation by AAP FactCheck.
In fact the application for a court order had advanced significantly through the court process before the ‘time’ issue was raised. That is, WorkSafe was in the process of making technical arguments to try and stop the Writ, when the judge made the “out of time” argument which WorkSafe’s barristers and QCs had apparently missed.
But what seemed to be the focus of AAP FactCheck’s analysis and its conclusion that SEA’s video and other commentary is ‘misleading’ was the statement by the judge in the ruling relating to ‘stress’ saying:
“If SEA is not granted an extension of time the individuals referred to in the First Request will be freed from the not insignificant stress of potentially being subjected to prosecution for serious criminal offences… the 20 individuals identified in the First Request may suffer considerable prejudice if SEA is granted an extension of time…”[emphasis added]
AAP FactCheck states that a professor from the University of Melbourne’s Law School “…said that the mention of stress was a ‘throw-away’ reference from the judge.” We offer the observation and view that judges are not prone to making ‘throw away lines’. In our opinion the ‘throw away’ comment is disinformation itself making light of arguably a significant judicial statement.
We say that we, Self-Employed Australia, have accurately and in huge detail reported publicly on the application we made to the court, the court case, and the judgement. We have not hidden any of the facts or sought to misinform. What we have done is made legitimate comment on a legal case and a legal decision that happens to involve the Victorian government and the politicians who lead the government and who were responsible for the failed hotel quarantine program.
Facebook’s opinion of an opinion- not ‘fact’
We also say that that what AAP FactCheck has done is offer an opinion on our opinion on the judgment. In other words, AAP FactCheck has presented their opinion as fact. In our opinion, AAP FactCheck in this instance is not uttering fact but opinion.
What is also interesting is that if, speculatively, the object of the fact checking, cancelling exercise was to limit the exposure of SEA’s video commentary in the public domain, the reverse has been the outcome. The Australian and other media outlets have commentary on this case and the implications for public debate and free speech.
Given the additional publicity that has occurred around the fact-checking exercise, the viewing of the video has escalated.
The reason for going through a lot, but not all of the detail, of AAP FactCheck’s commentary, is not to seek to prove whether we or AAP FactCheck are right or wrong. A ‘we said – they said’ argy-bargy, backward-and-forward monologue really gets no-where and can go on forever. Both opinions are legitimate, if presented as opinion.
However, Facebook has set itself up to be the arbiter of ‘truth’ or what it says is the ‘truth’ that it will allow to be published on its platform. Facebook has outsourced the determination of ‘truth’ to third parties. That’s fine, one supposes, for a company to do that. It owns the platform. It can do what it likes!
A real threat
But it is something entirely different for parliament to pass a law that all social media platforms must do as Facebook has done. For parliament to do this as outlined in the Misinformation and Disinformation Bill is to silence opinion. And on the basis of AAP FactCheck’s clear statement that it is in the business of assessing things that are ‘political’, the enforcement of such ‘fact checking’ is a political exercise.
The compulsory silencing of opinion on the basis of political ‘fact’ determination by appointed ‘truth police’ heralds an era of oppression of the people. We have seen this far too often in the history of human activity. The consequences are always ugly, sometimes horrifyingly so.
There’s an old saying that we get the governance we deserve. The reality is that each generation must fight to ensure good governance!
Next will be Freedom of Association. The Victorian Government under the reign of the then attorney general Rob Hulls attempted it and now we will see the Federal Attorney General do it and it will be related to this and the Albanese Government’s truth Sereme legislation.
These are difficult times and we must be strong. Thank you SEA.
Very well presented account of the suppression of free speech, and thus of free thought and democracy, that lies in plain sight in the Labor Government’s ridiculous Bill.
Next will be Freedom of Association. The Victorian Government under the reign of the then attorney general Rob Hulls attempted it and now we will see the Federal Attorney General do it and it will be related to this and the Albanese Government’s truth Sereme legislation.
These are difficult times and we must be strong. Thank you SEA.
Very well presented account of the suppression of free speech, and thus of free thought and democracy, that lies in plain sight in the Labor Government’s ridiculous Bill.
Keep up the good fight.
Terry