Mr. Dualta Ó Broin:

I thank the committee for inviting Facebook to contribute to the pre-legislative scrutiny of the general scheme of the Electoral Reform Bill 2020. I am head of public policy for Facebook Ireland Limited. I will start by saying that Facebook very much welcomes the Government’s intention to establish an electoral commission and its objectives of modernising electoral law and safeguarding election integrity. As members may be aware, Facebook has made significant changes to its services to increase transparency, to prevent interference and to remove misinformation in the context of elections. In addition, Facebook continues to collaborate with organisations worldwide that are working to strengthen democracy, good governance and election integrity.

We recognise that the desire to introduce greater regulation and transparency in online political advertising has been a focus in Ireland for several years. The introduction of the Private Members’ Bill on the subject in 2017 led to the Open Policy Forum on Political Advertising in 2018, in which we were very pleased to be invited to participate, in addition to the consultation at the time. It is also important to highlight the role which Irish parliamentarians have played on the International Grand Committee on Fake News and Disinformation, working for the past few years with colleagues in parliaments across the world to identify solutions. From an Irish perspective we were particularly pleased that our vice president of content, Monika Bickert, was invited to attend the session held in the Seanad in November 2019.

Facebook has reviewed and analysed the general scheme with great interest but also, at times, with some concerns. Our detailed written submission was provided to the committee on 23 February. In that submission, we summarised Facebook’s efforts to protect democracy and election integrity, before noting our views on the draft provisions concerning online political advertising. In this statement, as requested, I will focus only on the regulation of online political advertising, which is dealt with in Part 4 of the Bill. For ease of reference, we have included a summary table of our position on the heads in Part 4 in annex 1 to this document. In addition, as it is likely to be of interest to the members, we have included the executive summary of our submission to the media committee on the Online Safety and Media Regulation Bill 2020 as annex 2. Given the amount of engagement that has taken place on the issue in Ireland, we would be interested to see the regulatory impact assessment which was prepared on this aspect of the Bill and, in particular, the reasons the approach outlined in Part 4 of the general scheme was deemed optimal.

As an overarching point, it is Facebook’s belief that online political advertising rules and standards should be harmonised across the EU to the extent possible. We are concerned that enacting these provisions at this time will lead to a lack of alignment between the requirements which exist during electoral periods in Ireland and the year-round EU wide rules for political advertising which the European Commission intends to introduce via the European democracy action plan and the Digital Services Act. We understand that the Commission intends to publish a legislative proposal for political advertising in the next six months. There is, therefore, a real possibility that online platforms could find themselves under two inconsistent regulatory regimes and placed in the undesirable, and avoidable, situation where they would have to choose between violating Irish law or violating EU law.

Second, if the committee is of the view that this part of the general scheme should rapidly progress, despite the concerns expressed by Facebook and others, we strongly recommend that a principles-based approach is adopted. This would give the electoral commission the power to engage with companies and other stakeholders to promote ongoing innovation and improvements, while at the same time delivering on the Government’s stated objective of achieving transparency in online political advertising.

Regarding the specific wording of the proposed legislation, it seems appropriate to start with the definition of a political advertisement. Facebook recommends a more objective definition of online political advertising. At a minimum, the legislation should take account of what online intermediaries such as Facebook can and cannot do. In short, we can identify whether an advertisement contains certain content, but we cannot divine the intention that an individual has in placing an advertisement. The reference to "political purpose" should be replaced with a far more objective test.

Moving to the actions required of online platforms, we have a broad range of concerns with the requirements set out in respect of the transparency notice. These include privacy concerns about the scope of information regarding an individual which is intended to be shared and the impact of disclosing specific micro-targeting criteria. We also have practical concerns about the appropriateness of online platforms collecting information about the amount spent on content creation and the requirements for advertisers to provide an end date for a campaign. Finally, we have concerns about the reporting obligations set out in this head and question whether they are proportionate or indeed necessary in all circumstances.

The appointment of a responsible person deserves significant attention. The general scheme provides for a complex system of oversight to be overseen in the first instance by a responsible person appointed by the online platform. The appointment of the responsible person moves the responsibility and onus of providing accurate and complete information away from the buyer, who holds the information, and onto the online platform.

Our concerns in this regard are far-reaching. It seems far more straightforward for the relevant regulatory body to have the power to simply engage with the online platforms and directly investigate any and all of the issues which these heads appear to be attempting to resolve.

As a final point, I know that a broad range of issues which are not currently captured by the general scheme, such as misinformation and cybersecurity, have been discussed during the deliberations of the committee. In light of the volume of regulation for online services which is emerging at EU level and the existing and new Irish regulatory bodies which may be required to implement these measures, it may be of benefit to consider how the proposed electoral commission would interact and engage with some of these, including the digital services coordinator which will be required under the digital services Act, as well as Ireland’s existing cybersecurity agency.

I again thank the Chair and members for inviting me to speak. I look forward to the discussion and hope to be able to answer as many questions as possible from members.