Oireachtas Joint and Select Committees

Tuesday, 27 November 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)

4:00 pm

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

The Acting Chairman has welcomed the witnesses and as sponsor of the Bill I second that welcome. I also echo the Acting Chairman's comments that turnout today may appear to be low because some colleagues are attending a meeting of our sister committee in Westminster and others are elsewhere. The transcript will be read in detail and people are watching online and through other fora. There is significant interest in the matter under discussion. I introduced the Online Advertising and Social Media (Transparency) Bill to the Dáil this time last year. It progressed through First Stage and passed Second Stage by majority vote of the Dáil and is now being scrutinised by the committee. This is the third or fourth session of detailed scrutiny by the committee. We are progressing through the detail of the Bill and I look forward to today's interaction.

The concept of the legislation is to apply the same degree of transparency and rigorous scrutiny to online political advertising as already exists for offline advertising. This will be achieved primarily by requiring that any political online advertisement carries a transparency notice. The technological and platform requirements of the transparency notice are deliberately non-specific. The notice can be very low-tech, such as a graphic designer working for the Leinster Leaderincluding a graphic with the text at the bottom, or it could be very high-tech, such as a sophisticated global platform including a widget that can be clicked to open to see more information. I have deliberately left this up to the platform in each case. What is required is that it makes known the publisher and sponsor of the advertisement so people who want to see whether somebody is being influenced by political advertising have the right to know who is seeking to bring it to his or her attention. People will be required to open an online account with a local newspaper or something as large as Twitter or Google and register who they are, who is behind them and what they are about. This could be a company registration number or a campaign office. This information must be accurate and it will be an offence for people to fail to provide accurate information on who they claim to be.

There are well established offences in the Electoral Acts and the Bill is consistent with them. When I was researching the Bill I uncovered more than 30 offences under the existing Electoral Acts for all kinds of offline campaigning. For example, if I put up a poster on a lamppost tonight if I am organising a public meeting or if I do so next year if there is an election I must disclose who arranged the poster and who published it and this must be written somewhere on the poster text. If I do not do this I can be subject to sanction. It is the same if I produce and distribute printed material in my constituency. At present, we do not have this online.

There is some confusion about the next matter and I will be interested to hear the views of SIPO on it. This is with regard to who governs the existing offences and what is the relevant enforcement agency. During the recent eighth amendment referendum there was a suggestion that people tried to make complaints in Garda stations and other facilities but there was confusion as to who was the responsible person to take the complaints and how the complaints should be recorded and enforced. I am sure SIPO will have comments on this.

The key concept of the Bill is that a disclosure notice appears on all online materials. There are two qualifications to this. The first is that it is with regard to paid political advertising. The Bill is not for ordinary home users giving out about how much they do not like a political party or how much they are for or against a particular referendum. It is aimed at professional users who are putting money behind a campaign and running sponsored advertisements or promoted posts. The second qualification is that the material is political in nature. I have a definition of political in the Bill, which is borrowed from the Broadcasting Authority of Ireland's advertising regulations regarding what comprises political matter. It is quite broad. I would welcome the thoughts of SIPO on this. I have often felt that some of the Electoral Acts are very specific to the period within which a campaign is under way after the trigger is pulled, which may be 30 or 40 days before polling. Often opinions are formed and minds are made up long before this. I believe this is a lacuna in our electoral law and we should have a much longer run in with regard to who is influencing what and what type of disclosure is required for what type of window. I am open to suggestion on this aspect of the Bill.

I have mentioned the Bill is technology and platform neutral. It does not engage in specifics. The Bill attempt to be robust enough to futureproof itself but with intentions that are clear so there can be follow up and enforcement. There has been some debate about the penalties. The Bill suggests failure to provide a disclosure notice or the correct and accurate information will be liable to sanction. There will be a maximum penalty of five years in jail or a €10,000 fine. These are not my penalties; they are consistent with the more than 30 existing offences under the Electoral Acts. I admit they appear onerous but they are consistently onerous with what is already on the Statute Book. I am open to suggestion on this but I do think it is important that we are consistent. I suggest there is no degree of censorship. Free speech is protected in the legislation because it takes no view on the content of the advertisement or material. It merely requires that if the material is political in nature the disclosure notice should apply in terms of who is running the content.

There is provision in the Bill for bots, which are automated software driven mass fake accounts that purport to be something other than what they are. We speak about fake and organic. Fake means somebody can press a button and use a software tool to run multiple fake accounts and in one go they can retweet, like or share particular posts. The algorithms of the social media platforms push the posts up the system, which means they appear to more users and get more reach and traction. It is an easy way to game the system. It is important because they can influence people and can appear more popular than they actually are. It is an artificial popularity. There is absolutely no problem with a home user getting his or her friends to retweet something as it is part of normal democracy and free speech but the Bill does cover sophisticated operations running bot farms, and such things exist. We have seen examples of this in many elections throughout the world, from the US presidential election to the Brexit vote and votes in Spain, Italy, Africa and South America in the past two to three years. People run very specific operations with thousands of users at a time that are actually controlled by one entity but purport to be multiple individual users for organic purposes. I do not know whether anybody here watches "Homeland" but there was a particularly chilling episode recently where a very sophisticated bot farm was run out of a warehouse and all the bots were controlled by one person. It had the effect of multiplying one view and pretending it was the view of many.

The Government is not necessarily represented today but the Department is. A previous issue had been flagged with regard to section 3, which proposes to make illegal public spending for political purposes. The thinking behind the section is to reinforce the McKenna judgment that already prohibits this. The Department suggested this could curtail legitimate public consultation engagement. If this is the case I quite happy to remove the section from the Bill. There is a new Minister at the Department and I am not sure whether the Department has considered the section again. I look forward to this engagement.

This is a simple Bill that is badly needed. Evidence of this need has been growing and multiplying over the past three years and with every passing month there are more scandals, such as that involving Cambridge Analytica, and more allegations about the employment of various online manipulations. It is important to introduce the Bill in this jurisdiction and other jurisdictions are following its progress with interest. I hope it is something we can get behind and bring transparency to the online world in the same way as there is already in the offline world.


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