Oireachtas Joint and Select Committees

Wednesday, 27 June 2018

Joint Oireachtas Committee on Communications, Climate Action and Environment

Online Advertising and Social Media (Transparency) Bill 2017 and the Influence of Social Media: Discussion (Resumed)

1:40 pm

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail) | Oireachtas source

That has been very helpful. I thank all the contributors so far and I am sure we will hear more. I took notes and recorded questions as each speaker came through. I will go through them in that order. At the outset, it is useful to note that the Bill has received a clean bill of health from the Office of the Parliamentary Legal Adviser. There may be some movement on definitions - and I am open to looking at those - but, as it stands, it is considered to be good potential law. That is useful. The Department of Communications, Climate Action and the Environment opened first and stated that the Minister for Communications, Climate Action and the Environment, Deputy Naughten, has no existing statutory involvement in electoral matters. His only statutory engagement is with limited aspects of EU law. Many of the elements are outside the usual work of his Department.

I understood, though, from a statement the Minister made in the Dáil that he is chairing the interdepartmental group. I do not know if that may be appropriate or correct, I may have misunderstood it, but my understanding was that he had taken the lead on this. I could be wrong. The statement does say that he is not really involved and perhaps the Minister for Housing, Planning and Local Government, Deputy Eoghan Murphy, should be leading that group. The witnesses might clarify that for me.

Another wider point came up in a number of different submissions. There are two key points I was conscious of as I drafted the Bill and this is the right stage to tease them out before the formal Committee Stage.

One issue concerns enforcement and one concerns definitions. Enforcement has come up a number of times in the testimony today. Mr. Ryan of the Department of Housing, Planning and Local Government mentioned lack of enforcement mechanisms. I agree to an extent. Overnight I had a look at the Non-Fatal Offences Against the Person Act 1997, which is one of the seminal pieces of criminal law and one of the most commonly used in the courts on a daily basis. That does not have any more provisions on enforcement than my Bill does, so I am not sure to what extent it is out of kilter in that regard. That being said, I agree that it would be helpful to have some form of intermediate body responsible for enforcement. Perhaps the Standards in Public Office Commission could play that role, or perhaps a new body such as the electoral commission currently being investigated. However, if we are passing a law now we have to do it with what we have in front of us.

It is also true that there is no stipulated enforcement body in the existing Electoral Acts, so as with any other criminal offence, presumably it is the Director of Public Prosecutions, DPP or the Garda that would actually investigate. In that respect it is very much in line with the Electoral Acts from 1992 onwards. In drafting the Bill I tried to be consistent with existing law, even when I felt that law may be flawed, because I am not in a position to repeal large tracts of law. It is consistent, but it may be consistently flawed. That said, there is a lot of law on the Statute Book in the same vein. I think maybe it is something we could tease out on Committee Stage, because I feel that the Standards in Public Office Commission or some other regulator would probably be useful, rather than going to a Garda station to report something like this.

Another issue also came up on which I would be very interested in comments from the departmental officials. During the course of researching and drafting this Bill, and indeed in the debates over the recent months, it came to light that in the more than 30 offences concerning electoral law that are already on the Statute Book, there do not appear to be any clear lines of inquiry stating to whom one reports, who investigates or who enforces. For example, one of the Electoral Acts states that the publisher and printer must be stated on a political poster. If, as happened during the referendum campaign, somebody sees a poster on a lamppost and that information is not there, to whom do they report it? From my investigations and those of others with an interest in the area, it seems there is a lacuna in the law at the moment. It is quite possible that there are 30 offences on our Statute Book for which no one is actually responsible. I would welcome comments from the Department on that. Is that the case?

I met with the chief executive of the UK Electoral Commission, Ms Claire Bassett. She was extremely interesting, and I am sure she will be meeting the Department and other stakeholders. The UK has a permanent Electoral Commission, which we do not. It already has laws that are not quite the same as the Bill, but have similar proposals. I asked a question about extra-territoriality and jurisdiction, because that comes up a lot in this debate. Essentially, Ms Bassett said that the Electoral Commission is aware of it but there is not an awful lot it can do. It goes ahead anyway, because it is still worth policing within the jurisdiction and there may be certain things it can do. However, it does not see this as any reason not to legislate, although it is of course a difficulty. Again, as per other speakers, I wish to pay tribute to the Transparent Referendum Initiative, Ms Liz Carolan and Mr. Craig Dwyer. I attended a seminar they hosted at Wood Quay with Ms Bassett, which was extremely useful.

On definitions, I have mentioned the point already, but as Mr. Dooley from the National Union of Journalists, NUJ, has said, the Broadcasting Act 2009 contains the definition of advertising directed towards a "political end". As the regulatory body for that Act, the Broadcasting Authority of Ireland, BAI, sets out what a "political end" means. The definition in this Bill is lifted from that. Again, it is broad but it is consistent. However, for the purposes of this Bill we could decide to tighten up the definition on Committee Stage if it was felt necessary, although I do take on board Mr. Dooley's interesting comments about trade union disputes and why we might prefer to keep it as it is because there may be good reasons for it.

I will now address Google. I know I am jumping around but I am trying to follow the order in which the witnesses contributed. I wish to put a few questions to Google. I appreciate its representatives' presence here today, and I appreciate the very helpful documents they have submitted. I have gone through them, and certainly as we approach Committee Stage I will be taking those on board and trying to shape amendments to try to reflect those very constructive practical suggestions. Google implemented a ban here during the referendum. What led the company to initiate that? Does it feel it was successful? Did the company feel it was proportionate? Does Google have any further measures planned along those lines in the absence of legislation by the Oireachtas, either by my Bill or by other means? Does Google have any further proposed actions, either in Ireland or elsewhere, as we approach European and other elections in due course?

Another observation is that my concept of the Bill in action is not a piece of legislation that would require constantly checking every single ad that goes online, whether on Google, Twitter, Facebook or other platforms. That would be far too inefficient and impractical. As with most areas of regulation and indeed law where sanctions are involved, I think there would be an element of self-policing, not by the platforms but by the participants. If I am running in an election against Deputy Stanley and I think that he is running an ad which is not kosher, I would be pretty quick to ring it in, and vice versa I am sure. Politics is a very competitive game. I imagine that there would be no shortage of people who would self-police in that regard, which I think removes some of the burden on both the platforms and the regulators. Indeed that is how most aspects of similar legislation and regulation work as it is.

We heard about the electoral commission and it is very welcome that it is progressing. That is positive. I might have one or two other questions, but that is probably enough for this bout.

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