Regulating news and disinformation on digital platforms: Self-regulation or prevarication?

Abstract

In February 2021 two initiatives for regulating digital platforms in Australia were implemented. The News Media Bargaining Code (“News Code”) attracted international attention as a legislative means of forcing platforms to pay for news content, while the Australian Voluntary Disinformation and Misinformation Code (“Disinformation Code”) was modelled on an international initiative. Both were developed to meet Government policy formulated in response to Australia's Digital Platforms Inquiry. Whereas the Inquiry recommended the use of co-regulation, Government policy switched to voluntary codes for both, then to a legislative scheme for the News Code. This article examines the schemes and critiques the policy on which they are based. It applies a conceptual framework to assess the optimum conditions for the use of co-regulation and self-regulation. It finds that a self-regulatory scheme of voluntary codes was never a suitable approach for the News Code, and that the close involvement of the regulator on the Disinformation Code - without a suitable remit or enforcement powers - distorts the self-regulatory model. This can in part be explained by the failure to address well-recognised flaws in the co-regulatory framework for telecommunications and broadcasting, the consequences of which are now being seen in attempts to regulate digital platforms.