Mr. Richard Browne:

The Department of Communications, Climate Action and Environment has been asked to appear before the committee to discuss a Private Members' Bill on online advertising and social media, which is heavily focused in electoral matters. As such, it may be useful for the committee to note that our Minister has no existing statutory involvement in electoral matters. His only statutory engagement in online advertising relates to limited aspects of EU legislation relating to broadcasting matters. As such, many of the elements touched upon by this Private Members' Bill lie outside of the usual work of this Department.

At this stage, more than 20 years since the widespread use of the Internet began, the full extent of the implications for society are still only becoming clear. Some of the challenges which have arisen are entirely new, while some, like the question of ensuring the integrity of electoral systems, are probably best described as an outgrowth of older difficulties. Attempts to suborn or undermine the democratic process are as old as democracy itself. However, the nature of online media, and social media, in particular, offer new opportunities to those who would seek to do so.

This area is profoundly sensitive and complex. Healthy debate is an essential component of the democratic process. The Internet has provided millions of people around the world with a means of engaging with each other on political issues directly. Politicians can speak directly to their constituents and voters can speak to each other. Unlike in traditional media, this engagement is user-generated, namely, there is no publisher, and generally, no editor. This open and free environment also means that there is potential for abuse by individuals and by organised groups. This can range from trolling and verbal abuse through to orchestrated attempts to sway electoral processes, either by sheer force of numbers or by using technical means to manipulate.

The international nature of the issue, the sheer volume of individual posts, tweets and online interactions and the legal basis for this online activity all make formal state-led intervention or control of online comment difficult. Instead, it has largely fallen to the companies that operate services online to police their own platforms. However, and despite the increased resources applied by these entities and the use of automated systems to remove certain categories of content, it is the subjective, human content that remains the most difficult. Operators have to contend with nuances of language and region, as well as with making decisions on complex issues, respecting national and EU laws. For example, constitutional and European requirements ensuring freedom of speech mean that any notice and takedown process in Ireland has to be balanced against the rights of individuals to freedom of expression and access to information.

As both the Minister for Communications, Climate Action and Environment and the Taoiseach have made clear, there is an appreciation in Government of the complexities and risks that might arise in this space, as well as the need for a balanced and comprehensive response.

On that basis and in response to Deputy Lawless's Bill, the Government formed an interdepartmental group on the security of the electoral process and disinformation late last year, with representation from a range of Departments and agencies. That group has conducted a risk assessment of the entire electoral process in Ireland and is exploring possible solutions to these issues. As the group will finalise its work shortly, the committee will understand that it is not possible to discuss the potential content of the report at this stage. It seems likely, however, given the sensitivity and importance of this area and the broad range of subjects covered by this report, that some form of multilateral, all-party process will be required after publication.

This area has also been subject to a significant amount of work at an EU level, with the independent high-level group on fake news and online disinformation publishing its report in March 2018. This group was founded by the Commission in November 2017 as part of a multi-strand process and made a series of recommendations across broad range of thematic areas including media literacy, empowerment of users and journalists, the diversity of the media ecosystem and transparency. In turn, this report informed the Commission's communication, Tackling online disinformation: A European Approach, which sets out a number of measures the Commission is proposing to take to address the subject of disinformation at EU level.

Turning to the Bill briefly, there are essentially three questions the committee might choose to address when considering the draft in detail. The first of these relates to the fact that the Bill presently lacks a number of provisions that would normally appear in legislation, including those relating to enforcement, the powers afforded to a Minister and the penalties that might be applied to anyone found in breach of the Bill.

The second question relates to the legal and practical issues associated with regulating content on the Internet. In the first instance, the committee may wish to consider the provisions of the e-commerce directive of 2000, specifically Article 15 of that directive. That article imposes a general prohibition on member states requiring information service providers "to monitor the information which they transmit or store" or "actively to seek facts or circumstances indicating illegal activity". This provision is one of the fundamental underpinnings of the operation of the Internet in Europe and essentially allows online service providers avail of a limited liability regime online, so long as they have a notice-and-takedown system in place. In addition, the extent to which this Bill might engage with the international and inter-jurisdictional questions arising in this area would also be of importance. This is not to say that regulatory interventions in this space are not possible; they clearly are but there are particular legal and practical considerations arising that have to be addressed in doing so.

There are two questions relating to enforcement the committee might wish to consider. The first of these relates to the complexity associated with dealing with what amounts to the regulation of content online. This is, by its nature, a highly subjective matter and one which would likely give rise to some profound challenges in constructing a legal instrument that would facilitate successful prosecutions in this space. Second, the committee may also choose to consider some of the questions that arise over a Minister having powers to essentially police a form of online political activity, including the safeguards to ensure that such powers are used appropriately.

The issues arising in this area are serious and, as demonstrated by ongoing work at national and European levels, require concerted action if they are to be addressed. I am happy to address any questions the committee members might have.