Digital media and political misinformation: the dire need for Truth in Political Advertising laws

Across most of Australia, it is legal to use misleading or deceptive material, including AI generated content, in political advertising. With the presence of political misinformation and disinformation as a profoundly troubling issue in the global and Australian political landscape, federal parliament must introduce laws to protect the integrity of our elections.[1]

The surge of new technological methods to strengthen political campaigning, from the enhancement of data and audience-targeting tools to the more blatant technique of AI deepfakes or swarms, has played a major role in this development. Politicians such as Senator David Pocock have advocated strongly for laws that address the issue of political misinformation and disinformation, also known as Truth In Political Advertising (TIPA) laws.[2] While South Australia and the ACT have laws prohibiting inaccurate and misleading statements in political ads, governments on state, territorial and federal levels have failed to respond to this threat, and the accuracy of political advertisement content remains generally unrestricted.[3]

What threat does digital political communication pose to our elections?

In recent years, the nature of the platforms from which voters collect information regarding government policy, election candidates and general political discussion has seen a huge shift to online spaces. The evolution of data collection, advertisement targeting and social media algorithm strategies have greatly impacted the way in which electors consume content regarding electoral content.^[4] Crucially, online platforms can be flooded with deceptive information about candidates or their policies through a variety of forms, from misleading statements to AI generated deepfakes or ‘bot swarms’.[5]

This undermines the effective participation of voters in the electoral process and endangers the maintenance of representative government, a principle mandated by our Constitution. A higher saturation of false information in election campaigns erodes the ability of voters to accurately choose between candidates at election time, as they must expend significant time and energy filtering political information. What’s more, this task of filtering information disproportionately affects parts of society that have lower digital literacy.[6]  

Ultimately, ineffective electoral participation risks having the flow-on effect of distorted electoral outcomes, where candidates receive more or less votes than they ordinarily would.^[7] Distrust of government institutions, political polarisation and ideological extremism are further examples of the serious impact of political misinformation and disinformation on democratic systems.^[8] 

The implied freedom of political communication

As TIPA laws involve limiting political speech, there is a risk that a broad model of these laws will breach the implied constitutional freedom of political communication.[9] This freedom, implied by the High Court from sections 7 and 24 of the Constitution, protects the free flow of communication between Australian citizens and ensures that the exercise of their voting power is unrestricted and informed.^[10]

The Supreme Court of South Australia has ruled that the current TIPA laws in South Australia are consistent with the implied freedom of political communication. According to Court, the implied freedom does not give “absolute and uncontrolled licence” to political communication; it does not entitle the spreading of misleading or false statements, nor does it limit the regulation of statements of that nature.^[11] 

However, these laws, as well as their ACT counterpart, are relatively narrow in their application.[12] For example, they both only apply to electoral advertising, as opposed to more general communication related to elections.[13] While this tailored approach to TIPA regulation can prevent provisions from being struck down as unconstitutional, it risks greater tolerance of political misinformation.[14] 

Evolution of TIPA laws in Australia

Australia has seen a slew of TIPA regulation throughout its history, although only South Australia and the ACT have managed to avoid repeal of these laws.[15]

South Australia’s Electoral Act 1985 makes it an offence to authorise, cause or permit inaccurate and misleading statements to be published in an electoral advertisement.^[16] This includes inaccurate and misleading statements published by any means, containing “matter calculated to affect the result of an election”.^[17] To make out the offence, the Court must be satisfied that voters were denied “a fair and free opportunity of electing the candidate which the majority might prefer”, or “there is reasonable ground to believe that a majority of electors may have been prevented from electing the candidate they preferred”. ^[18] However, it is not necessary to demonstrate that the election would have had a different outcome if not for the misleading statements.^[19] The Australian Capital Territory has almost identical provisions in its own legislation.^[20]

As for the other states and territories, while there has been some discussion in Tasmania, New South Wales and Victoria towards TIPA laws, no successful legislative action has been taken.[21]

Commonwealth Parliament and TIPA laws

The Commonwealth Parliament is also not a stranger to TIPA Laws. In 1984, the Commonwealth Parliament briefly inserted a provision into the Commonwealth Electoral Act 1918 (Cth) to prohibit electoral ads that contained statements that were untrue or likely to be misleading or deceptive.[22] This was repealed merely 8 months after its assent.[23]

More recent attempts to regulate truth in political advertising at a federal level include MP Zali Steggall’s private member’s bill in 2021, which was not passed.[24] The Albanese Government also introduced the Combatting Misinformation and Disinformation Bill in 2024 which sought to outlaw misleading and deceptive content in political campaigns, but this lapsed with the last parliament.[25]

The urgent need for a comprehensive TIPA framework

In July 2025, Senator David Pocock introduced the Electoral Communications Bill in the Senate.[26] Similarly to the Combatting Misinformation and Disinformation Bill, the Electoral Communications Bill bans misleading and deceptive political advertisements but also makes explicit reference to artificial intelligence and deepfakes.[27] 

However, the question remains of how to keep up the momentum. The second reading of the Electoral Communications Bill was moved in July 2025, but Federal Parliament has failed to make further progress since then.  The current legislative stagnancy on passing TIPA laws means that the challenges raised by digital political communication remain at large. It is vital that Parliament does not allow another Bill aimed at protecting  the integrity of our electoral processes to lapse.

References:

[1] Lisa Hill, Max Douglass and Ravi Baltutis, How and Why to Regulate False Political Advertising in Australia (Palgrave Macmillan, 2022) 20.

[2]David Pocock, ‘Time Running Out to Protect our Democracy from Lies and AI in Elections’ (Media Release, 7 September 2024) < https://www.davidpocock.com.au/time_running_out_to_protect_our_democracy_from_lies_and_ai_in_elections>.

[3] Electoral Act 1985 (SA) s113; Electoral Act 1992 (ACT) s297A.

[4] Hill, Douglass and Baltutis (n 1) 20.

[5] Robert Booth, ‘Experts warn of threat to democracy from ‘AI bot swarms’ infesting social media’ , The Guardian (online, 23 January 2026) < https://www.theguardian.com/technology/2026/jan/22/experts-warn-of-threat-to-democracy-by-ai-bot-swarms-infesting-social-media>.

[6] Hill, Douglass and Baltutis (n 1) 20.

[7] Ibid 18.

[8] Ibid 20.

[9]Yee-Fui Ng, Truth in political advertising laws: design, operation, effectiveness and recommendations for reform (Interim Report, 17 December 2024) 37.

[10]Kieran Pender, ‘Regulating Truth and Lies in Political Advertising: Implied Freedom Considerations’ (2022) 44(1) Sydney Law Review 1, 9; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 557-67 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ).

[11] Cameron v Becker (1995) 64 SASR 238, 247.

[12] Pender (n 12) 19.

[13] Ibid 20.

[14] Ibid 19.

[15] Ng (n 11) 6.

[16] Electoral Act 1985 (n 3) s113.

[17] Ibid s 113(1); 4.

[18] Featherston v Tully [No 2] (2002) 83 SASR 347, [125].

[19] Ibid [237]–[238].

[20] Electoral Act 1992 (n 3) s 297A.

[21] See Ng (n 11) 8-9.

[22] Ibid 7.

[23] Department of Parliamentary Services (Cth), Political Advertising in Australia (Research Brief, 29 November 2004) 8–9; see this Research Brief generally for more detail.

[24] Commonwealth Electoral Amendment (Stop the Lies) Bill 2021 (Cth).

[25] Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 (Cth).

[26] Electoral Legislation Amendment (Electoral Communications) Bill 2025 (No. 2) (Cth).

[27] Ibid s321MA.