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Balance in the Electoral Reform Bill

10 Jun 2022 / Legislation Print

Balance of power

The aim of the Electoral Reform Bill 2022 is not to place duties of ‘balance’ on online platforms, but to create a mechanism to ensure that the electorate has transparency and information on the political adverts they might see. Jennifer Kavanagh clicks ‘share’.

Among the changes proposed by the Electoral Reform Bill 2022 is an attempt to create some form of transparency for online political advertising. The form of political-speech regulation that we are used to in Ireland normally focuses on broadcasting moratoriums before elections and balance when it comes to broadcast media.

The proposals contained in the bill will try to give people access to the identity of those who are buying advertisements, and how much has been spent.

The experiences of the ‘Repeal the Eighth’ (abortion) referendum regarding online political advertising demonstrates that Ireland is not immune from the need to have some form of transparency.

During that referendum, Google and YouTube suspended all advertisements relating to the referendum, and Facebook banned all adverts from being bought, unless the buyer could prove that they lived in Ireland.

During the Brexit campaign, the practice of micro-targeting social-media users to show certain users adverts that would particularly resonate with them, due to data analysis, was queried.

Online platforms, especially the social-media giants that also have their European headquarters in Ireland, are being scrutinised in relation to not only their efforts to counteract disinformation and misinformation, but also their own contributions towards electoral integrity through their own policies to monitor and review the use of their platforms by those who may have undemocratic intents.

Ah, referee!

Having seen the experience and challenges of refereeing online political advertisements, the approach that is proposed by the legislation is not to place positive duties of ‘balance’ on platforms, but to create a mechanism to ensure that people have transparency and information on the political adverts that they may see, for future Irish elections and referendums.

Political discourse is essential to a functioning, healthy democracy. The use of regulation for political speech is something that is traditionally avoided, since any form of interference – irrespective of the intention – can either restrict debate or distort the free flow of information.

Political-speech protections are found in the Constitution, as part of the civil and political-rights section. Traditionally, they have only been restricted on the grounds of national security or ‘authority of the State’, such as the old section 31 broadcasting restrictions, which were reviewed in the case of State (Lynch) v Cooney.

There must be a balance of time given to candidates or parties in elections, and to each side of the argument in referendums. For example, in Coughlan v Broadcasting Complaints Commission, the uneven distribution of time to either side in the divorce referendum was held to be unconstitutional.

Code blue

The traditional ways that Irish people have seen coverage and posters is regulated tightly. For the usual posters that dot the land during election and referendum campaigns, there are regulations on their placement contained in the Road Traffic Acts and time limits for when they can be visible under the Littering Acts.

To ensure transparency and accountability for those putting up posters, every notice bill or poster must have the name and address of the printer or publisher written on it, with criminal sanctions for non-compliance under the provisions of electoral legislation.

The current guidance in Ireland regarding elections and referendums can be found in the 2018 Broadcasting Authority of Ireland Rule 27 Guidelines, the Broadcasting Authority of Ireland Guidelines in Respect of Coverage of Referenda (2019), and its 2013 Code of Fairness, Objectivity and Impartiality in News and Current Affairs, made pursuant to section 42(1) of the Broadcasting Act.

These codes are created to ensure that balance, impartiality, and objectivity are employed in the production and editing of news and current-affairs programmes during elections and referendums. Issues such as the moratorium on broadcasts for certain durations prior to the ballot, and on party-political broadcasts, are also covered.

Aims and means

The Broadcasting Act 2009 specifically states that advertising directed towards a political aim is prohibited, and broadcasters are placed under a general duty of objectivity regarding news reporting. This now holds even before a referendum date has been appointed, but the desirability to hold a referendum is well known.

For example, the BAI found against The Mooney Show in August 2014, on the basis that a discussion of same-sex marriage should have had a balancing voice. This was outside the time of a proposed referendum, but the authority still found against RTÉ.

Even though the discussion was primarily a personal story, the fact that the discussion moved towards the legal and current-affairs issues surrounding recognition of same-sex marriage meant that the broadcaster was bound by its duties regarding fairness and equality.

The online world, on the other hand, is not subject to moratoriums, and currently does not have any form of accountability, such as the restrictions detailed above. It is now more part and parcel of pre-election and pre-referendum debates, with no accountability or transparency regulations.

Ad lib

Part 4 of the Electoral Reform Bill seeks to create a regulatory framework for online political advertising. The regulation and enforcement of the provisions will be one of the functions of the Electoral Commission to be set up in the same draft legislation.

Online political advertisement is defined as any form of communication in a digital format for political purposes, purchased for placement, display, promotion, or dissemination on an online platform during an electoral period, and for which a payment or payment in kind is made to the online platform concerned.

Therefore, this legislation is not targeted at countering the online disinformation or misinformation that is currently an issue for many. In this case, the focus is solely on the placement of paid adverts.

It is, in effect, taking the essence of the rules on posters on lampposts and applying them to banner adverts on websites. However, micro-targeting of an audience will be monitored and subject to transparency notices, which should make people more aware of the reasons they are seeing political adverts.

Such paid-for political adverts will need to be labelled as a political advert in a conspicuous manner, and include a transparency notice. People will also be made aware if they were shown the advert due to targeting. The fee for the advert will also need to be visible in the transparency notice. This information will have to be maintained and updated in real time and archived.

Online platforms will have to verify the identity of buyers, and there will also be obligations placed on these buyers by law. It will not be possible, under the proposed laws, for anyone outside the State to purchase online political adverts.

The Electoral Commission will have the power to monitor online advertising and to both encourage compliance and investigate alleged non-compliance with the regulations. The new body will also have the power to appoint authorised officers to investigate any suspected contravention of the legislation. They may issue compliance notices, and these may be appealed to the District Court.

The offences detailed can be guilty on summary conviction to a ‘Class A’ fine or imprisonment not exceeding 12 months, or on indictment to a fine or imprisonment for up to five years. Where the offence is committed by a body corporate, but with the consent, connivance, or wilful neglect of a director, manager, secretary or other officer, then they will also be exposed to similar criminal punishment.

I can see-saw clearly now

What the Electoral Commission proposals seek to do is to create an online version of the rules related to ‘posters for the virtual world’.

When trying to formulate a system of regulation for the online world, there are two choices: either to balance the discourse in question, or to create transparency regulations.

Balance will always require a choice to be made between sides – generally on time requirements, as in the current broadcast media regulations. Even though such balance requirements help to achieve a democratic and equal hearing of views, in the regulatory landscape of online and social media, they would be harder to implement.

It may also lead to other issues, such as algorithms making decisions, and how such decisions can be reviewed.

By contrast, transparency requirements don't require a choice to be made but, rather, for information to be made available to the public. This mirrors our current rules for real-life political posters and literature.

There is no ‘balance call’ to be made – rather, an increase in transparency, so that people who are being canvassed virtually can view financial information and the identity of the entity that bought the advert.

With further regulation on social media and online platforms in general emanating from Europe (such as the proposed Digital Services Act), this is a first step by Ireland in demonstrating that the online world is no longer a virtual ‘wild west’, but a place where law and order, and accountability, are developing when it comes to political advertising.

The benefit of the proposed system is that people will be able to access information to explain who is funding what they are seeing, and why they are seeing specific adverts. It will not have similar provisions to the current broadcasting regulations, but it will allow for accountability and prevent foreign funds or entities from becoming involved in the purchase of adverts.

By eschewing the balance issue, it removes some of the areas that may be litigated, as per the broadcast experience. However, with increasing scrutiny of social media and online platforms, this will probably only represent the start of more accountability and regulation for the online world – and not just for politics. 

Look it up

CASES:

LEGISLATION:

LITERATURE:

  • Broadcasting Authority of Ireland Rule 27 Guidelines, Guidelines for Coverage of General, Presidential, Seanad, Local and European Elections (September 2018)
  • Code of Fairness, Objectivity and Impartiality in News and Current Affairs (Broadcasting Authority of Ireland, April 2013)
  • Guidelines in Respect of Coverage of Referenda (Broadcasting Authority of Ireland,
  • April 2019)

Read and print a PDF of this article here.

Jennifer Kavanagh
Dr Jennifer Kavanagh is a law lecturer in Waterford Institute of Technology, specialising in constitutional, administrative and electoral law.