As part of the backlash against the Australian government’s deliberation over whether Facebook should pay media outlets to use their news content in February this year, Facebook banned all news articles from being posted and shared on its platform in Australia in mid-February 2021.[1] Any person within Australia no longer had access to news and current affairs through Facebook, one of the largest sources of information in the twenty-first century.[2] The ban only lasted a few days, but nevertheless has legal implications. Aside from being financially irresponsible of Facebook (if the ban had lasted a year, Facebook would have lost an estimated 10 million AUD in revenue), Facebook’s decision was also socially irresponsible, as it had serious implications for freedom of political communication in Australia.[3]
The Australian Constitution does not contain a Bill of Rights, nor is there a human rights act providing human rights freedoms to Australians.[4] However, the High Court – Australia’s highest court of appeal with jurisdiction over interpreting the Constitution – has interpreted the Australian Constitution as containing a right to freedom of political communication.[5] The Court has articulated that this right is necessary for the maintenance of representative and responsible government, a feature of Australian government evident from sections in the Australian Constitution including the requirement that Members of Parliament be elected by the Australian people.[6]
Freedom of political communication implies that information that is necessary for Australians to make free and informed decisions when voting in Australia’s compulsory elections should not be impermissibly restricted, except where there is a sufficient policy reason.[7] On the face of it, Facebook’s decision to ban news sources on its platform may seem like a restriction on political communication. Australians’ ability to engage with political discussion is severely limited given that, for the duration of the ban, Facebook reduced Australians’ access to information on politics and current affairs.
However, the freedom of political communication as interpreted into the Australian Constitution is not a positive empowerment of rights on citizens. Instead, it is a limitation of parliament’s legislative power.[8] The effect of this is that Australians cannot sue someone (or in this case, something) for encroaching upon their freedom of political communication. Instead, if the Australian legislature were to implement legislation that encroached on the freedom of political communication, the High Court would have sufficient grounds to strike it down.[9]
In the case of the Facebook media ban, the Australian government has done nothing to encroach on its citizens’ rights – the restriction to these freedoms is a result of Facebook’s actions. Consequently, Australians have no legal recourse against Facebook. This naturally raises the question of whether Australian law should expand to hold third parties accountable for breaches of rights. Unlike other liberal democracies, Australia has very few legally enshrined rights, and there is significant debate in Australia about whether a Bill of Rights should be implemented. The Facebook ban situation has illustrated that Australia’s protections for citizens from non-governmental bodies are inadequate. For the freedom of political communication to be property protected from encroachment, its legal status needs to be changed from a ‘freedom’ from government intrusion to a positive right endowed upon Australian citizens.
[1] Snape, Jack. “Government escalates feud with Facebook over news ban, pulling its ads in fight over media bargaining rules” ABC News. February 22, 2021. https://www.abc.net.au/news/2021-02-22/government-escalates-facebook-feud-by-pulling-advertising/13177688. Accessed March 19, 2021.
[2] Khadem, Nassim. “Facebook news ban could backfire as media publishers draw communities and advertisers away” ABC News. February 19 2021. https://www.abc.net.au/news/2021-02-19/facebook-news-ban-could-backfire-advertisers-communities/13169930. Accessed March 19, 2021.
[3] Snape, Jack. “Government escalates feud with Facebook over news ban, pulling its ads in fight over media bargaining rules” ABC News. February 22, 2021. https://www.abc.net.au/news/2021-02-22/government-escalates-facebook-feud-by-pulling-advertising/13177688. Accessed March 19, 2021.
[4] Commonwealth of Australia Constitution Act 1900.
[5] Australian Capital Television Pty Ltd v Commonwealth, 177 CLR 106 (1992).
[6] Ibid.
[7] Lange v Australian Broadcasting Corporation, HCA 25 (1997).
[8] Ibid.
[9] Administrative Decisions (Judicial Review) Act 1977 (Australian Commonwealth) https://www.legislation.gov.au/Details/C2019C00309.