How Ireland proposes to tackle the thorny issue of online political advertising

It is not news that Ireland could do with reform of its electoral systems. A review of local electoral area boundaries; greater voter education functions; and modernising the electoral register, to name some reforms, are included in the proposed new Electoral Reform Bill. Covid-19 has indirectly been the catalyst to move the legislative process along after it was realised new procedures are needed to ensure safe elections can be conducted while the country may be in the midst of a health crisis.

However, a subsection of the Electoral Reform Bill looks at introducing regulation of online political advertising. The Bill seeks to improve transparency and standards of online political advertising during the period that political elections take place and is not without its difficulties.

The Government hopes transparency can create trust in the system

The Bill aims to set out the information which must be disclosed when such a political advertisement is published/promoted/distributed online and the format in which this type of information must be provided. The list of information required is comprehensive and, if fully complied with by each online political advertisement, would enable transparency and context of online political advertisements for the voting public, journalists, fact checkers and independent researchers.

The Bill also sets out the identification and verification duties of the ‘responsible person’ who must (under the regulations) be appointed by an online platform/the seller of the online political advertisement. Non-compliance is an offence for the online platform and the Bill places some statutory duties on the purchasers of online political advertisements.

On top of this, the Government is also setting out procedures which must be used to identify and verify the buyer prior to placing an online political advertisement. This will map out how to deal with advertisements commissioned from outside of Ireland, to ensure that they are permissible.

The regulator is the Electoral Commission in the first instance. The enforcement regime would be constructed and implemented by the newly established regulatory body. This new independent regulator would also have powers to investigate regulated entities comprising of both the sellers and the buyers of online political advertising.

The proposals raise a number of additional questions

The proposed Bill raises a number of challenges, as the Government tries to find the balance between increased transparency to curtail malevolent acts that intervene with the democratic process and the freedom to express political opinions. The Bill must also heed the current policy and legislative agendas in regard to illegal content, online safety (in regard to the proposed Online Safety and Media Regulation Bill) and the existing Electoral Act 1997.

In the first instance, Oireachtas Committee members examining the Bill as part of pre-legislative scrutiny have raised the issue of confining the application of transparency requirements to online political advertising commissioned for placement during the election period.  The option of broadening the scope of the Electoral Commission to cover monitoring activity all year around would significantly widen the scope of the Bill. However, concerns have been raised that concerted acts of malicious online political intervention may go unchecked outside of elections periods.

A key tenet of the Bill will be to iron out the powers of the new regulatory body – the Electoral Commission. Policymakers first at Committee-level, and later when the Bill passes through the Dáil and the Seanad, will examine guidelines due to be issued on procedure for investigations by the Electoral Commission which may include proactive and reactive triggers for an investigation. Similarly, the Electoral Commission, when established, may have a role in bringing forward practicality proposals to address the spread of nefarious political activity online and the challenges it presents to democracy. This represents a huge challenge for the independent body, which may be relied upon to pronounce on fundamental rights issues of freedom of expression, right to anonymity and to define where formal pollical advertising ends and personal political activity begins.

The risk of misinformation and disinformation spread through social media, but not through advertising, during Irish electoral campaigns are not addressed in this draft Bill. In a hearing of the Committee on Housing, Local Government and Heritage (tasked with examining the Bill before it is tabled in the Oireachtas), Department officials were quick to outline the scope of the Bill and the feasible powers attributed to the Electoral Commission. They are reluctant to expand the Bill into the space of content moderation. Instead, the infrastructure around increased transparency and verification is a means to the end – greater information leads to greater scrutiny from interested parties, leading to a stronger democratic regime during the election period is the current Government approach.

Online platforms raise alarm on the practicality of the Bill

Next week (30 March) Facebook and Twitter will appear before the Oireachtas Committee, eager to push back on some of the new proposals being explored by Committee members. In a forewarning of what Facebook is likely to say to the Committee, the platform has called the proposed rules “impractical” and “difficult to comply with”. More specifically, it points out that election candidates are already statutorily required to report their expenditure under the Electoral Act 1997 and transparency rules proposed in the Bill would mean the disclosure of “large amounts of personal information and user data” that would ultimately contravene GDPR and confidentiality norms.

For now, there is much more to be debated regarding the online political advertising aspects of the Bill. Not tackling many of concerns raised on this section of the Bill now is likely to hinder progress at a later stage, while not addressing the risks of online political advertising in this piece of legislation will be seen as a missed opportunity. Either way, any future Electoral Commission will have a major role in the success of future electoral events in Ireland and as we continue to become more reliant on online discourse and information sources.