Truth in political advertising: Strengthening democracy or curtailing free speech?

The next election must be held before May 2025, and the time for meaningful reform is now.

The federal government’s intention to introduce truth in political advertising laws is a development that has been long overdue, given the significant implications of deceptive political messaging on democratic processes in Australia. Recent surveys have highlighted the overwhelming support for such legislation, with nearly 90 per cent of the electorate advocating for its implementation. This level of public endorsement underscores the urgency and necessity of these laws in the current political landscape.

One crucial aspect to consider is the existing legal framework surrounding advertising, which deems it an offense to disseminate false information in all forms of other advertising. It is a common-sense extension to apply these principles to political advertising, where misinformation can have dire consequences for the electorate. Deceptive practices have had a tangible impact on recent elections, as exemplified by the franking credits and negative gearing scare campaign in 2019 and these campaigns were marked by their misleading nature and demonstrated how the absence of stringent regulations allows falsehoods to flourish.

The recent Voice of Parliament referendum served as a wake-up call for the government, prompting it to consider the need for truth in political advertising legislation. This referendum, which aimed to establish an Indigenous Voice to Parliament and constitutional recognition, faced fierce opposition characterised by a campaign riddled with falsehoods – the fact that this referendum became a catalyst for government action speaks to the severity of the issue and the potential harm that deceptive political advertising can inflict on the democratic process.

However, not everyone is in favour of these proposed laws, with groups such as the conservative Advanced Australia and the Liberal Party have openly expressed their opposition to truth in political advertising legislation. Their resistance raises questions about their motivations and intentions as it suggests they rely on misleading or false information to advance their political goals and that, without this tool of misinformation available to them, they will have a diminished chance of electoral success in future elections.

Despite the opposition – which flies in the face of the public’s desire to have this kind of legislation in place – it is essential to acknowledge that truth in political advertising legislation represents a significant step toward enhancing the quality of political discourse in Australia and reducing the spread of misinformation. These laws have the potential to set a higher standard for political campaigns and hold politicians accountable for the veracity of their claims and, in a democratic system that thrives on informed and engaged citizens, the necessity of accurate information cannot be overstated.

While the exact provisions of the legislation are yet to be revealed, the very concept of holding politicians accountable for their statements should be encouraged. The effectiveness and fairness of any such legislation will become clearer when it is put into practice but the challenge lies in striking the right balance between regulating political advertising to ensure honesty and transparency while upholding the principles of free speech and open debate.

In this era of digital misinformation and the spread of fake news, addressing the problem of false political advertising is critical. However, it should be noted that addressing political misinformation is not solely the responsibility of legislation. Media outlets and political campaigns themselves should also act ethically and responsibly to ensure that misinformation does not gain traction. The public’s trust in political discourse and the integrity of the democratic process are at stake, and it is incumbent upon all stakeholders to work toward more accurate and honest political advertising.

Opposition to new laws reflects a fear of accountability

Opposition to the proposed truth in political advertising legislation is apparent, even before the legislation has been formally proposed. Those who stand in opposition are motivated by a desire to maintain the status quo, where they can capitalise on creating outrage, waging imaginary culture wars, and disseminating disinformation with relative impunity. And who benefits from the status quo? It’s the current Liberal Party, One Nation, and figures like Pauline Hanson, Advance Australia: it’s also their benefactors in the media, News Corporation and Sky News, whose business model is based on lies and misinformation. These entities are the primary beneficiaries of the ability to spread misinformation and falsehoods for political gain.

For politicians and political movements whose viability hinges on the freedom to distort the truth, the prospect of having to adhere to standards of accuracy and honesty in their political advertising is naturally unattractive. It raises questions about the nature of their political movement and its principles: if a political entity relies on the spread of disinformation and the unrestricted use of lies as a strategy, where is the integrity and legitimacy of their objectives? Why resort to misinformation if their values cannot stand the test of veracity within the electorate?

The concerns raised by opponents of truth in political advertising often revolve around the potential for this legislation to restrict free speech and stifle legitimate political discourse. However, it’s essential to recognise that the aim is not to silence political expression but to ensure that political communication is grounded in facts and truth. Truth in political advertising legislation doesn’t seek to curtail the robust exchange of ideas; rather, it seeks to curb the harmful practice of spreading falsehoods for political gain.

Skeptics also point out that politicians might find ways to bypass or subvert such legislation by increasing their media appearances and utilising journalists who are willing to report their statements as fact, even if they are misleading. While this may be a legitimate concern, it doesn’t diminish the importance of having clear regulations in place. The existence of alternative methods for politicians to pursue their agendas does not negate the need for oversight in political advertising.

Moreover, the effectiveness of truth in political advertising legislation may not be all-encompassing, and it may not eradicate misinformation entirely. It is a challenge to strike a balance between accountability and protecting genuine misunderstandings, where individuals may not be intentionally lying but rather misinformed or mistaken. The legislation should aim to differentiate between wilful deception and inadvertent misinformation, drawing upon the legal standard for perjury as a guide.

One significant apprehension regarding the forthcoming legislation is that it might be diluted with numerous caveats and narrow definitions of what constitutes a lie, thereby undermining its purpose. It’s crucial that the legislation is robust and clear, leaving minimal room for interpretation or exploitation and any such watering down of the legislation could render it ineffectual and fail to address the root problem of dishonest political advertising.

It is worth noting that support for truth in political advertising legislation is expected to come from minor parties and independent politicians, who often find themselves at a disadvantage when competing against well-established parties that have the resources and inclination to engage in misleading advertising. The legislative process will undoubtedly be a test of the government’s commitment to transparency and accountability in political discourse, and its outcome will shape the future of political campaigning in Australia. Until the legislation is officially introduced and its specifics are disclosed, the precise impact and effectiveness of these proposed laws remain to be seen. The journey toward ensuring truth and transparency in political advertising will be a nuanced and challenging one, but one that is pivotal for the health of Australia’s democratic system.

Government’s cautious approach hinders timely reforms

The cautious approach taken by Prime Minister Anthony Albanese in addressing key issues has, in some instances, hamstrung the government’s ability to enact important reforms in a timely manner. While the government has made notable progress on various fronts within the first six months of its term, such as the establishment of the National Anti Corruption Commission, the issue of truth in political advertising should have been fast-tracked as a top priority immediately after securing victory in May 2022.

The fact that a parliamentary committee was set up to investigate this matter in August 2022 is a step in the right direction, however, it’s concerning that it took nearly a year for the committee to complete its report. The complexity of the issues at hand is understood, but a year for the committee process seems excessive, especially given the urgency of addressing the problem of deceptive political advertising. The delay in getting the legislation up and running only further extends the timeline for potential reform.

This delay has already had consequences in the Voice to Parliament referendum, and while it’s unclear if having truth in political advertising laws in place would have made a difference in the final result, it’s evident that the government will need to have such legislation enacted before the next federal election to ensure that such a campaign based on misinformation is never repeated.

One of the primary considerations is the delicate balance between protecting freedom of speech, political information, and political thought, and ensuring the integrity of the political process. While freedom of speech is a cornerstone of democratic societies, it should not be misused to deceive or manipulate the electorate. The legislation must navigate this fine line while accounting for potential unintended consequences.

Determining what constitutes a lie in political advertising is another intricate issue. The legislation will need clear guidelines for assessment and a framework to determine who will be responsible for assessing whether a statement qualifies as a lie or not. Additionally, there should be a well-defined set of sanctions for those who violate the truth in political advertising laws. The legislation must be robust and carry substantial consequences for breaches to be effective.

Moreover, this legislation should not be a mere symbolic gesture or “feel-good” policy; it should be a powerful tool to maintain the integrity of the political process. Even if the courts become involved in adjudicating disputes arising from the legislation, it is crucial that the laws themselves are strong and clear.

The potential for false imputations and deceptive claims to be used as political weapons is a real concern, as has been seen in the past. The need to prevent such actions and to uphold the ethical standards of political campaigns is a driving force behind the push for truth in political advertising legislation and by holding politicians accountable for their statements and campaign claims, the hope is to create a more transparent and truthful electoral process.

In addition to legislation concerning truth in political advertising, there is an opportunity to consider broader reforms in how election campaigns are conducted and how individuals are selected for preselection in political parties.

In 2007, Scott Morrison spread lies and rumours about the successful candidate in the Cook preselection battle, Michael Towke, who was subsequently disendorsed by the NSW branch of the Liberal Party, with Morrison being installed in his place. Could these unfair practices also be included within the process of electoral reform?

While parties have their unique procedures for preselection, there is a need for overarching standards that ensure preselections are conducted honestly and ethically. This would not necessarily dictate to parties how they preselect, but rather establish a fair and consistent set of guidelines that all parties must adhere to.

The issue of truth in political advertising is a complex one, but it is one that requires swift and decisive action. The government’s approach to this legislation will set the tone for how electoral campaigns are conducted and how politicians are held accountable for their statements. A comprehensive and well-crafted set of laws can bring much-needed transparency and truth to Australian politics, safeguarding the democratic process and the public’s right to accurate information in political discourse. The next election must be held before May 2025, and the time for meaningful reform is now.

Legislation for digital age presents a challenge

The debate surrounding truth in political advertising is not a new one; it has been a topic of discussion for over 20 years. However, over the past three to four years, it has gained significant momentum, reflecting the growing concern about deceptive political messaging. Interestingly, Australia had truth in political advertising laws in the past, albeit briefly. In 1983, just after being elected, the Hawke government amended the Commonwealth Electoral Act to make it illegal to publish anything that could deceive or mislead a voter. This legislation applied to everyone, not just members of parliament and political parties, and violations at the time could result in a $1,000 fine (valued at around $4,000 in 2023) or a six-month jail term.

Regrettably, this legislation was repealed before the 1984 election, with the justification that it was “unworkable”. However, 40 years later, the environment has changed drastically. In the past, political campaigns were primarily limited to television, radio, and newspapers but, today, with the advent of the internet and social media, political news and advertising have taken on a multifaceted and pervasive nature. This expanded reach has created numerous opportunities for the dissemination of myths, truth, and misinformation.

It is essential to recognise that politics, to some extent, has always involved the art of manipulating the truth, but in recent years, this practice has grown increasingly extreme. Politicians, like Scott Morrison and Peter Dutton, have at times resorted to telling glaring and outrageous lies, which end up being duly reported by the media, without any context or counterbalance. While truth in political advertising laws may not entirely eliminate this behaviour, they can serve as a deterrent and impose a constraint on some of the other avenues for spreading misinformation.

The best that can realistically expect from such legislation is a slowing down of the spread of misinformation rather than a complete cessation, as political campaigns have adapted to exploit the inherent vagueness and ambiguity of whispers and rumours, as exemplified by the recent Voice to Parliament referendum. Truth in political advertising laws can help create mechanisms to counter such tactics, making it more difficult for political entities to amplify falsehoods and baseless rumours.

It’s a step toward a more informed and honest political discourse, one that safeguards the integrity of the democratic process and empowers citizens to make well-informed decisions. As the legislative process unfolds and the laws take shape – hopefully in time for the next federal election – the impact on Australian politics and democracy will become increasingly evident, hopefully enhancing the transparency and credibility of the political arena.