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)
I draw the attention of witnesses to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.
Any submission or opening statement made to the committee will be published on the committee's website after this meeting.
Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official either by name or in such a way as to make him or her identifiable.
I remind members and witnesses to turn off their mobile phones or to switch them to flight mode as they interfere with the sound system.
I welcome our witnesses and I invite Deputy James Lawless to give a brief overview of his Bill.
I welcome the witnesses. This is the second of three stakeholder engagements on my Bill.
There has been a pattern throughout history that societies which better understand technology have supplanted and bested those which did not. We have seen this in areas such as sanitation and disease management, steel and guns, shipbuilding and navigation, as well as micromanagement and administration of government. Those that understand technology and can master it typically triumph over those who are less cognisant of it. In the modern context, the Internet and information communications technology are a great example of that. Our laws have struggled to keep pace with the Internet age. The area of electoral campaigning is no different.
The Bill sets out to address this. It does not attempt to address every problem of the Internet age or every difficulty in electoral campaigning. That would require a broad brush and would not be possible through a Private Members' Bill. An editorial in The Irish Timesdescribed the Bill as a modest but important step, however, in that regard. It is modest and deliberately narrow and tight in scope to deal with online electoral campaigning. It tries to bring some degree of regulation to this area. We have seen many examples of problems in this regard in recent elections. We are conscious of alleged influence in the Brexit vote, the ongoing hearings on the US presidential vote and the French presidential election. The Cambridge Analytica scandal brought to the fore many electoral examples throughout the developed and developing world. In our recent referendum, Google and Facebook banned certain electoral advertising on their platforms.
It is incumbent on legislators, policymakers and stakeholders to take action and to come up with a reasonable response to these threats. These threats include anonymous or misleading advertising, hiding behind Internet secrecy to run falsified campaigns, masquerading as someone else and concealing from the public who is trying to influence them. There have been breaches of spending rules. It is often used as a backdoor to get around election spending limits by running multiple campaigns from different accounts without any disclosure or attribution. Ultimately, it boils down to attempts to defraud the electorate. There are also issues such as microtargeting and the deliberate use of bots to generate fake organic website traffic. This is the attempt to make a particular social media posting more popular than it is which, in turn, is intended to influence public opinion.
All of this is rife. Offline channels of electoral campaigning, be they pamphlets, print media, posters or broadcast media, are covered in great detail by the Electoral Act 1992. Unfortunately, we have yet to produce any regulation for the Internet age. It is important that the principle of free speech be front and centre of any regulation. I have attempted to strike the right balance between regulation and respecting free speech. The Bill does not set out to censor or silence anybody. It merely sets out to have disclosure and transparency around who is posting what and who is sponsoring it. It is technologically and ideologically neutral.
I have read the submissions and I have closely followed the debate on the Bill in recent months. I anticipate there may be a suggestion that certain definitions in the Bill require fine-tuning and could be overly broad or overly narrow. I take these concerns at face value. However, almost every definition in the Bill is borrowed from previous legislation such as the electoral and broadcasting Acts. If it were inconsistent in this regard, then, accordingly, if the Bill were enacted, it would follow that the electoral and broadcasting Acts would have to be amended. I do not believe anyone proposes to follow that course of action. Instead, the Bill can be fine-tuned on Committee Stage to strengthen its provisions and ensure robust regulation for electoral campaigning in the Internet age. While the referendum is over, European and local elections, as well as possible general and presidential elections, will come up in the next 12 months. This issue will not go away anytime soon. Ireland has been in the eye of the storm with global media interest in the recent referendum. There is an opportunity for Ireland to become a leader in this area. Many legislatures have attempted this but none have got it right yet. I have been in correspondence with international counterparts. There is a consensus that the Bill is a move in the right direction and has the potential to be the first legislation of its kind to be passed anywhere in the world. This would put us on the world stage and there is no reason we cannot do that. I look forward to the debate and I thank the witnesses for attending.
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.
I thank Mr. Browne. The next witnesses, from the Department of Housing, Planning and Local Government, are Mr. Barry Ryan, principal officer, franchise section, and Mr. Paris Beausang, assistant principal officer, franchise section. I invite Mr. Ryan to address us.
Mr. Barry Ryan:
I thank the committee for inviting representatives of the Department to appear before it this afternoon. We welcome this opportunity to engage with it in its detailed scrutiny of the Online Advertising and Social Media (Transparency) Bill 2017, a Bill that proposes to provide for transparency in the disclosure of information related to online political advertising. I am accompanied this afternoon by my colleague, Mr. Paris Beausang, also from the franchise section within the Department.
In very broad terms, the Electoral Acts provide for the statutory framework for the registration of electors, the general conduct of elections - local, European, Dáil, Seanad and presidential - and referendums, the registration of political parties, the funding of political parties, the reimbursement of election expenses, the establishment of election expenditure limits, the disclosure of election expenditure and the political donations regime, as well as a broad range of electoral offences to support compliance with all aspects of election administration.
Under the Electoral Acts, the sole provisions in regard to advertisements provide that every notice, bill, poster or similar document having reference to an election or to a referendum or distributed for the purpose of furthering a particular result at an election or at a referendum is required to bear upon its face the name and address of the printer and of the publisher thereof. There are no specific requirements under the Electoral Acts in regard to online advertising, nor do the Acts regulate the content of election or referendum posters. It is considered that regulation in the latter case could be construed as potentially impinging on the right to freedom of speech or freedom of expression or both. Both are an integral part of our democratic processes.
The Department is aware of the current trends, both in Ireland and internationally, in the growth of online advertising over the other more traditional forms of media advertising and of the impact this may have on the outcome of elections. The micro-targeting of digital advertisements and the use of disinformation are a source of concern, having particular regard to the various investigations that are currently under way in other jurisdictions in regard to such matters. Clearly, the use of disinformation can erode confidence in democratic institutions, as well as in traditional media and, ultimately, may adversely impact upon the ability of the electorate to make informed decisions in the absence of trusted sources of information.
In response to these concerns and in recognition that a multidimensional approach would be required as part of any effective response, the Government established, earlier this year, an interdepartmental group to consider the substantive issues arising from recent experiences in other democratic countries, having particular regard to the use of social media by external, anonymous or hidden third parties in their electoral processes. As Mr. Browne indicated in his contribution, this group will report shortly.
More specifically, with regard to the Bill we are here to discuss this afternoon there are two issues of particular concern the committee may wish to consider in more detail before it progresses further through the Houses of the Oireachtas. While the proposal for a transparency notice to accompany an online advertisement for political ends appears to be similar in concept to the requirements under the Electoral Acts in respect of billboards, posters and notices, and is welcome in principle in that regard, nevertheless the extraterritorial nature of social media platforms and website providers, as well as the difficulty associated with determining the ownership or control of social media profiles or advertising sponsors could create very real differences in practice.
Ultimately, billboards, posters and notices are tangible and are attached to physical infrastructure in the State; if they do not comply with the law, the persons in the State who placed the advertisement may be prosecuted; this may not be possible with online advertisements given they may be posted online from outside our jurisdiction. The Bill does not appear to provide for an enforcement authority, nor does it appear to provide for powers of enforcement to support compliance with the requirements on transparency notices.
In addition, the Department is concerned that the definition of "political end" may give rise to unintended consequences. The definition includes references to democratic institutions that are outside the jurisdiction of the State and also appears to include matters relating to "industrial disputes". It is considered that the definition, as it currently stands, is very broad. Perhaps the committee might wish to consider a more narrow focus.
The Department is aware of international trends in the growth of online advertising over other more traditional forms of advertising and of the growing trend in the use of digital media in political campaigning. Developments internationally, including on regulating this technically and legally complex area, should inform considerations on the scope that may exist at this point in time to provide for greater transparency in this area.
I thank the members for their attention. I look forward to questions.
I thank Mr. Ryan. The witnesses from Google Ireland are Ms Lee Carosi Dunn, senior counsel and head of international elections outreach, and Mr. Ryan Meade, public policy and government relations manager. I invite Ms Dunn to give the presentation this afternoon.
Ms Lee Carosi Dunn:
I thank the Chairman and committee members for the invitation to participate in today's session. I thank Deputy Lawless for introducing his Bill and for this discussion. I am senior counsel in Google's Washington DC office and head of international elections outreach for the company. I have been with Google for seven years and am familiar with our products and policies related to online advertising and civics information.
The elections outreach team at Google travels throughout the world, educating campaigns, candidates, governments, voters and public policy makers about our tools for reaching and informing voters, in addition to our online security tools.
I am of Irish descent so I am particularly honoured to be here today. I can only imagine what my grandmother, Kelly, would say if she saw me here. She only spoke of clouds and rain in Ireland so I have been very confused during my stay here, on my first visit to Ireland, because of all the sunshine.
I am joined by my colleague Ryan Meade, our public policy and government relations manager for the country, based in Dublin in our Europe, Middle East and Africa headquarters. I am also joined by Ms Jessica Stansfield and Ms Emma Smith, from our office.
We welcome the committee's invitation to discuss the Bill. Over the next five minutes we will share Google's approach to elections outreach and our views on the Bill.
We are encouraged by the detailed scrutiny the committee is carrying out on this Bill, and its engagement with stakeholders is greatly appreciated. Google is committed to making political advertising more transparent so we support the objective of this Bill. We understand the aim of the Bill is to apply the standards of transparency and openness that Irish voters rightly expect to campaigns and political advertising.
We are currently working on tools to provide this transparency to voters in respect of online advertising. We have provided the committee with a short paper that details our observations on the Bill. Those observations are drawn from our global knowledge and experience of political online advertising. Before I address these, it might be useful to share a little of Google’s perspective on elections and the role that online advertising and other digital technologies can play in fostering democracy.
In their 2004 founders’ letter, Google’s founders Larry Page and Sergey Brin stated, “We believe a well functioning society should have free, abundant, and unbiased access to high quality information.” This is a principle that has guided Google’s work and mission throughout our existence and it continues to do so today. We believe that democracy works better when citizens are informed about the issues that affect them and when they are able to engage with representative government. With this belief in mind, we have built products and programs to organise the world's electoral information. We help voters across the globe engage with democratic processes so that all of their voices can be heard as a government takes shape. Our users ask Google to provide them with accurate, reliable, and comprehensive information. We take this responsibility very seriously. To serve this mission, voters can access information through our products like Google Search and YouTube. Whether helping people to find out how and where to vote, helping them to learn more about candidates and issues or allowing them to use platforms like YouTube to express their political views, our products and tools enable voters to make political decisions and fully engage in the political process.
Today, making information accessible also means protecting it, which is why we created Protect Your Election, a suite of no-cost tools to help protect election-critical websites from digital attacks and email accounts from phishing and hacking attacks, and to educate candidates about countering disinformation online. As a result of the fact that it is so important to be safe online, we also provide digital security training to those most at risk in order that they can learn how to use these tools and identify when they are needed. When it comes to the use of our online advertising products in elections, we have put in place a number of policies to ensure that the privacy of our users is protected. Google strictly prohibits advertisements served to users based on sensitive characteristics such as the user’s health information or religious beliefs. In Ireland and other countries outside of the US, we prohibit advertisements from being served to users based on political affiliation or leaning.
We believe online political advertising helps to democratise elections by making advertising available to all candidates and causes. We believe the legislation must strike a careful balance between the rights of free expression, access to information, data protection, and privacy. It should therefore avoid imposing undue restrictions on the fundamental rights of freedom of opinion and expression. We believe certain provisions in the Bill go further than necessary to achieve this desired objective. For this reason, we have a few concerns about specific provisions of the Bill.
We present five key recommendations on the Bill in our paper. Our first recommendation is that, as Deputy Lawless mentioned, the definitions in the Bill should be clear. A number of definitions in the Bill are framed in broad terms which may give rise to uncertainty and unintended consequences. As such, we are concerned that section 3(1) will have the unintended consequence of placing online platforms in the position of being arbiters of matters of political speech in Ireland by placing the onus of identifying whether an advertisement is directed towards a political end on the platforms. We also suggest further clarity regarding the definition of “bots” and where the liability for their potential use and misuse should lie. We agree and recommend that any new legal framework should also reflect the laws governing online services in the EU, particularly the e-commerce directive, which Mr. Browne mentioned. As a general point we ask the committee to ensure that any legislation is future-proofed by being as technology and platform neutral as possible. We hope the committee will take these points into consideration as it continues its deliberations on the Bill. We believe that these changes will make the legislation more effective and increase clarity as we seek to apply it to our platforms.
When viewed in the wider context, we note that the Bill does not serve as a comprehensive reform of Irish political advertising laws. For example, it does not address the current ambiguity in the law regarding regulation of foreign actors seeking to deliver advertising in Irish political campaigns - something which has been of significant public concern recently. In addition, no regulatory body has been allocated responsibility for ensuring compliance with the Bill's provisions. The committee may wish to consider whether a more comprehensive approach might be better given the number of issues that arise.
We want to assure the committee that Google's engagement with it on this Bill is important. We appreciate being invited to appear. We have been in Ireland for almost 15 years and, as we mentioned, Dublin is our headquarters for our markets in Europe, the Middle East and Africa. It has grown to be one of our largest headquarters outside North America. We now have 7,000 employees working for Google in Ireland and we are continuing to grow, with hundreds of current job openings here. We are proud of our investment in our team in Ireland. We look forward to continued engagement with legislators whenever we can be of assistance and to working with the committee on the Bill. I thank the committee. We welcome any questions members might have.
Mr. Séamus Dooley:
The National Union of Journalists, NUJ, is grateful for the opportunity to address the committee on the Online Advertising and Social Media (Transparency) Bill 2017. We commend Deputy James Lawless on taking the initiative in bringing forward this Bill. I happen to know that he is the former district correspondence with the Leinster Leader so he knows something about the pressures of the media, at least at local level. The NUJ represents professional journalists in the UK and Ireland. We represent media practitioners in print, broadcasting and digital sectors. Our code of conduct, which is included as appendix 1, has set out the main principles of the union. The Bill is consistent with the aims and objectives of the NUJ code of conduct, even though we represent journalists and not advertising personnel. The first and second principles of the code state that a journalist:
1. At all times upholds and defends the principle of media freedom, the right of freedom of expression and the right of the public to be informed.
2. Strives to ensure that information disseminated is honestly conveyed, accurate and fair.
The fourth principle requires that a journalist “Differentiates between fact and opinion.” and the tenth also deals with similar issues of transparency. All of these principles are predicated on the importance of transparency. This Bill is predicated on the same principle.
As I have said, as a union we do not represent those engaged in advertising, but we do have a clear interest in the presentation of views and information and we emphatically have an interest in freedom of expression. Some concerns have been raised by previous speakers on the potential implications of this Bill for that right. However, the right to freedom of expression is also understood to mean the right to receive accurate information in an honest and clear fashion. Let me make it clear that we are not in favour of banning advertising. Advertising can perform an important function and for many media organisations it is an important source of revenue. We are in favour of regulating advertising however. We especially recognise the need for regulation in respect of electoral, political and public affairs. There is a clear public interest in ensuring that advertising is not disguised as news. That rule applies across the board, to strike a topical note.
This Bill applies the principles of openness and transparency to online advertising and it applies rules which effectively already exist in what is sometimes referred to as the dead-wood media. The concept of a transparency note is a welcome development. This seeks to shine a light on those who fund advertising for political purposes.The measures as outlined seem logical but I know from my past experience of this committee that it will take on board the concerns raised by Google and others. I would suggest that there is potentially a wider issue here, which is the question of whether we need an electoral commission to look at all aspects of elections. Of course, that is outside the remit of this committee.
Online advertising is pervasive. The use of algorithms has the potential to influence the viewer or listener in a subliminal fashion, to mould public opinion and to shape the outcome of democratic elections. The NUJ is gravely concerned by the concept of political micro-targeting and it is this issue which is directly relevant to working journalists. The collection and use of data used to target individuals on demographic, geographic or behavioural segments has profound implications for the democratic process. We welcome the emerging consensus that action is needed to ensure that hidden forces are not allowed to determine the outcome of democratic elections. In this regard we note and commend the work of the Transparent Referendum Initiative, TRI, which did so much to bring openness to the funding of on-line advertising in the referendum on the eighth amendment. Liz Carolan and Craig Dwyer have performed an important public service, as has the Geary Institute at UCD which supported that work. TRI's detailed analysis will be of invaluable assistance to political scientists.
The key findings of TRI included the fact that advertisements from untraceable sources were used to mislead voters, discredit political figures and groups, mimic official or neutral information sources, gather voter data and share disturbing images.
They also saw overseas and unregistered groups spending untraceable funds trying to influence the outcome of the vote and exploiting the legal loophole. Google's belated decision to ban all advertising relating to the eighth amendment referendum, and Facebook's announcement that it would allow ads only relating to the referendum to be bought by organisations located within the Republic, underlined the need for this legislation. In Mr. Dwyer's view, the action was too little and too late. The Cambridge Analytica scandal also serves as a global wake-up call, and the Bill in that respect is a timely initiative.
The National Union of Journalists, NUJ, has long called for a commission on the future of the media in Ireland. It seems the concerns raised in this Bill, and wider concerns about the role and engagement of media in Ireland, should be addressed by such a commission. In the meantime, however, this Bill is a welcome first step.
I thank the guests for their presentations. I will start with the NUJ. The need for an electoral commission was mentioned, and its possible role in overseeing the regulation of online media advertising for political purposes. I refer to what areas the Bill would cover. Section 2(2) says it would cover matters relating to the Houses of the Oireachtas, the Assembly in the Six Counties in the North of Ireland, the European Parliament, local authorities in this State, the subject matter of a referendum or any matter relating to an industrial dispute going on within the State. Could Mr. Dooley comment on that from a trade union point of view?
I thank Ms Dunn from Google for his presentation. Google unilaterally took action in the referendum. Does Ms Dunn think that is sufficient, or is it the role of individual companies to do that? Should that be the role of the Legislature, the Houses of the Oireachtas?
I know Deputy Lawless had difficulty trying to find a definition of "bot". Would anyone like to comment on the definition of "bot", and how we would define and manage it?
I raised the next point on the Second Stage debate in the Chamber. In terms of the regulating the extra-territorial dimension of this, as we have seen not only online but in the referendum, a political party in a country outside the UK intervened in the England, Scotland and Wales referendum, which was also happening at the same time in the North of Ireland. An entity on this island, which is a separate country from England, intervened in that. Obviously, in the online context, it is much easier to intervene. In terms of trying to regulate that in the international context, and outside agencies intervening in it, which was the focus, it was probably welcome as a one-off intervention. People on both sides of the referendum might have complained about it, but in general it was welcome. I am not sure it is the job of a corporate commercial entity to do that. Could the witnesses comment on that?
Ms Lee Carosi Dunn:
I will start with the referendum. To specifically answer Deputy Stanley's question, as a corporate entity we wanted to ensure we were protecting our platforms from misuse, so we always have to take a strong stand there. The role of Parliament is, hopefully, to give us clarity in the law, and to better understand how to make sure our platforms are not being misused. We believe there is a genuine need for the laws to be updated in this space. There are currently no specific rules in Irish law that are applicable to online advertising, which is why we welcome the committee's interest and engagement with stakeholders, and Deputy Lawless's Bill. There is no regulation of foreign donations to Irish political campaigns. There is currently no regulation of foreign actors delivering advertising to Irish political campaigns. Taking all this into account, we determined a pause on the referendum ads was the most prudent response to the public concerns and the lack of clarity within the law.
My question was whether it should be the Parliament or companies acting unilaterally. The intervention was maybe the best thing to do in the circumstances. From here on out, does Ms Dunn think these things would be better managed from here, the Houses of the Oireachtas - the Seanad and the Dáil - where law is enacted and not left to individual corporate companies?
Ms Lee Carosi Dunn:
We hope not to be in the position to have to make that decision again. We hope, through the course of what we are doing here and having detailed scrutiny and discussion of the Bill, that there will be further clarity in the law to ensure it is very clear and that we do not find ourselves in that position again. We have learned a lot from this experience. I can tell the committee that.
Dr. Michael Foley:
We agree totally with what Ms Dunn is saying. It would be both wrong and unfair to expect commercial corporations to take action to protect Irish people from particular advertising or whatever. As Ms Dunn said, it did so to protect its platform, which is its function, but it is the role of Parliament here to make sure we have legislation that protects Irish people.
On the broader issue, what we have got to understand is that, in the whole issue around free speech, which is obviously part of this, it is important those who receive information understand its provenance. As journalists, we have always insisted that, where possible, journalists source their stories and information so that people know where they came from. That is quite central to this. It is not peripheral. Knowing where our information comes from is the context of which that information is a part.
Much has been said about unintended consequences which, as legislators, the members know more about than most people. Mr. Dooley raised the issue of having some sort of commission to look at the media. The last time there was any sort of commission that looked at the media it was a commission on the newspaper industry in 1996. I looked at the report recently. There is not one mention of technology. The only issue it feared was the undermining of Irish culture by British newspapers coming into Ireland. That is the last time we had a serious look at the media, and it did not mention technology at all. Here we are looking at the possible unintended consequences of a relatively small and simple piece of legislation. Maybe it is time we looked at the media again in its totality, which includes everything from The Irish Timesto Google and Facebook. That might be something that members of this committee might take on board for a later debate.
Mr. Séamus Dooley:
Deputy Stanley asked for my comment on the electoral commission. That was a general comment. After every election, and usually on the morning of the election, Deputies and Senators receive phone calls from people who are not on the register. It is a mystery to me, as someone who has worked as a journalist for many years, that the simple issue of the modern compiling of a register has not been addressed. Similarly, a referendum commission is established immediately after the writ is moved, and a heavy burden of work is done in a short period of time around transfer of information.
Equally, there was reference already to the inconsistency in the rules governing the print media and the printing of posters and, in the case of online media, no rules at all. It seems to me that it is a peculiarly Irish way of doing business in trying to address the issue with many different pieces rather than one structural review. In that context, the idea of a permanent electoral commission which could look at all of these things, including governing rules on a technology-neutral basis, would be a good idea. Dr. Michael Foley is right - the Commission on the Newspaper Industry was technology neutral in that it just did not recognise its existence.
On countries dealing with transparency and online issues, are there any examples of countries doing this well? Are there good examples from Google's point of view? Every country will have its own scenarios and one size will not fit all but are there examples of where it is working well?
Ms Lee Carosi Dunn:
Legislation has been introduced in a number of different countries and different countries are looking at different aspects of this issue. Legislation has also become law in some states in the United States. The state of Maryland has recently passed a law, for example. One of the interesting facts about that law is that it puts the onus on the advertiser to present himself or herself to the platform as a political advertiser looking to provide advertisements of a political nature. That begins a collaboration between the platform and the advertiser. The advertiser will then step in and make sure all of its advertisements are disclosed and that those advertisements have the disclosure on them. That is an item of legislation that is helpful because we want to provide transparency. We think it is good for voters, good for our platform and good for our users. It also helps to have an ongoing dialogue with advertisers seeking to be political advertisers to ensure that we have the disclosure on there.
Deputy Stanley mentioned the idea of territoriality and a foreign entity. One of the processes we are working on in the United States for our transparency tool roll-out for election advertisements is verification of the advertiser. For example, when people in the United States now wish to provide political advertisements online on Google, they need to present themselves with identification. We can then verify that the advertisers are who they say they are in respect of the candidate or political cause. That has been a helpful source for us when we do the disclosures because we are in a position to ensure the disclosures are identifying the correct advertiser.
Mr. Ryan Meade:
To answer the Chair's question about other examples, she is probably aware that the electoral commission in the UK recently released a report covering many of the aspects the committee is considering. Google was able to contribute to that and collaborate with the electoral commission by feeding in our views. That is an example of where it is useful to have a standing body that can consider these matters. One of the views we have expressed on this Bill is the question of who would enforce it and what would that body be. On those two aspects, there is an argument for the committee to consider that a standing body would make some of the aims of the committee more achievable.
Mr. Barry Ryan:
There has been so much talk about the electoral commission that perhaps I should update the committee. I am sure the committee is aware that the establishment of an electoral commission is in the existing programme for Government. There have been many considerations and reports over the years by Oireachtas committees and consultation processes on the establishment of such a commission. The Department is preparing a regulatory impact analysis which we expect to be completed in the autumn. It will set out a range of options and each one will, in turn, set out a range of functions together with membership, accountability mechanisms, timelines for establishing the commission and the costs of each option. I caution about commissions from my knowledge of this internationally. I had the pleasure of meeting the chief executive officer of the UK Electoral Commission, Ms Claire Bassett, when she was here last week and I believe she also met Deputy Lawless.
Mr. Barry Ryan:
It depends on the functions set out for that commission. A commission could be established with very limited and straightforward functions and that could be done relatively quickly. I refer, however, to some of the issues it was mentioned a commission might deal with. There is an extensive body of electoral law and the establishment of a commission would impact on many areas of that law and even the legislation on giving commissions powers and functions could be extensive. A body could be set up quickly but what it would do is a more complex piece of work.
I am speaking in general terms. A commission could be set up in the short term on a phased basis. It could deal with, for example, preliminary issues or some of the issues we are dealing with here to get something going and to start now.
Mr. Barry Ryan:
That could be one option set out in the regulatory impact analysis we are doing. The Oireachtas committee which looked at this - I think it was the Joint Committee on Environment, Culture and the Gaeltacht at the time - cautioned against what it called the "big bang" approach of establishing a commission with wide-ranging powers right from the word go.
Mr. Séamus Dooley:
I wish to clarify that it is correct that the UK regulator does not regulate content. There is, however, no suggestion for regulation of content. It is an Online Advertising and Social Media (Transparency) Bill and the primary concern, from our perspective at least, is the issue of funding and sourcing. We are not suggesting that the commission would edit advertisements. I apologise to Deputy Stanley for not answering his question on where are we in respect of the inclusion of references to industrial disputes. If my memory is right, and Deputy Lawless can correct me, I think that probably comes from the Broadcasting Acts. It makes sense and it is something that the NUJ would welcome. A well known airline has taken out full page advertisements attacking trade unions during a dispute. Industrial disputes are fraught and the idea of under-the-counter money being paid by forces from anywhere to attack either side in such dispute would not be helpful. There is a logic to not having such advertising. It is a principle of the Broadcasting Act and an interpretation of that.
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.
Mr. Richard Browne:
I think I will have answers for four of the five questions asked. In the first instance, the interdepartmental group is chaired by the Department of the Taoiseach rather than by any Minister, so it is run out of the centre.
On the enforcement point, I raised some questions about enforcement as well. The difference here between a criminal law Act and the civil law in a regulatory function is that in a regulatory environment there must be powers to compel entities to do things. We could take the Data Protection Act 2018 as an example. Telecoms legislation providing for the powers of the Commission for Communications Regulation, Comreg, or the forthcoming legislation around cybersecurity all have a system of information notices and compliance notices. They allow people to provide information to allow an entity to assess compliance with a regulatory system. There is a system of compliance notices to allow somebody to compel an entity to do something or take a particular type of action. Then there are penalties assigned to different types of offences under the legislation. It is different in criminal law, where obviously a very different approach is taken.
There is more to the enforcement question as well. If a system has thousands or millions of people commenting online, then obviously policing it in a finite, infinitesimally granular way is going to be extremely complex. However, if we choose to not police it, given the sheer volume it is very easy to have a situation where it just becomes ignored. If there are a small number of transactions and it is policed collectively in the way the Deputy suggests, then it is possible to have some kind of communal assessment of justice. If there is no policing entity, then there can be a surge in a matter of a few days or weeks. We have seen it online in a number of other cases where there are clear breaches of rules. Without enforcement by a policing authority, a better regulatory body or a compliance body, it will be very difficult for the legislation to actually have any effect. That is the second question.
The third question is around territoriality. The UK and other jurisdictions have readily agreed and said that one can only do so much. A state can only operate within its own territory. There is a bigger question here that has to be appreciated by the committee before we can really get into this question in any great detail. It goes back to a question Deputy Stanley raised as well. Conceptually, the Internet is governed by a mix of European law and national law in various aspects. European law applies around a very wide variety of issues including data protection, cybersecurity, child protection etc. The Internet is also governed by a system of what we call multi-stakeholder governance at a global level. The committee has heard about components of this in the past. The question of territoriality and extra-territoriality is different when it comes to the Internet. There are real limitations on what individual states can do, hence this notice and take down-type procedure that is essentially applied at a global level. In the US, there is the Digital Millennium Copyright Act and in the EU we have an equivalent piece of legislation called the e-commerce directive. They both apply similar notice and take down mere conduit style models. They exist. Whether we do things now in the same way as we did them 20 years ago is a different matter, but they exist and they are there for a reason. Unravelling and undoing that really substantial edifice of case law, practice and tools would take a very considerable amount of time. However, it is what it is. What the Oireachtas should do is one question. What the Oireachtas can do is a different question.
It is safe to say that across Europe, and indeed globally Australia and New Zealand have had similar issues, there has been a series in the past 20 years of regulatory interventions and attempted regulatory interventions in Internet-type matters on everything from electoral law right through to child protection through to intellectual property. It is a very broad spectrum. In the end it comes back to the fact that one can do in certain areas, clear national interventions and then in other cases one has to rely on one supranational e-commerce directive-type interventions. There are some things that are very difficult to do. The touchstone from the perspective of the Department of Communications, Climate Action and Environment that we always go back to is that this works best when it is sectorally based. Making law for the Internet, just for Internet-related issues is very difficult. If one regulates a sector and encapsulate the Internet-related component of that in it, it is much more likely to work. Medicines is a case in point. Data protection is a case in point. We do not have the GDPR for the Internet and a GDPR for something else, we have a GDPR. We have a Data Protection Act that covers Internet and offline and that is the way that regulatory models tend to work in this case.
The last question the Deputy raised was with regard to the definition from the Broadcasting Act 2009 on political end, it is worth noting that the law on electoral matters, as I am sure everybody will be aware in terms of broadcast, is prohibition. One cannot advertise for matters on broadcast media in Ireland outside of party political broadcasts. The application of a definition when it is binary is obviously slightly different.
Mr. Barry Ryan:
I thank the Chairman. Deputy Lawless raised two key points, enforcement and offences. Enforcement and offences are linked in the Electoral Acts. We simply point to the lack of enforcement provisions in the Bill, as drafted. I wish to make the point and ask the question of the Oireachtas as to whether this is the best way of doing it. I accept that as the offences are listed primarily in the Electoral Acts, the vast majority of the offences would be a matter for the Garda Síochána. Any change to that would be a policy matter. I simply raise the question in terms of the existing Bill, as to whether that the best way to do it.
As for process, one of the offences is not having the name of the printer or publisher on the face of the poster. Wearing my other hat as referendum returning officer in the recent campaign, my office had some complaints about posters being up without the name of the printer or publisher on it. The recourse in that instance is to the Garda because the Bill simply states that it is an offence. Complaints about posters ranged across different issues that people have with them. There are other provisions that may help, for example, if they are put up in an inappropriate way that obstructs traffic, then traffic and road law comes into force.
Similarly, under section 7 of the Criminal Justice (Public Order) Act, it is an offence to put up material that is threatening, abusive, insulting or obscene, so there are other legislative provisions outside of the electoral law that cover some of those issues.
Ms Lee Carosi Dunn:
The Chair asked a question about the referendum. I can tell the committee that it was a difficult decision for the company. We were obviously very aware of the sensitivity around the referendum, once it was announced and had a cross-functional group meet regularly to review advertisements and our processes. These included employees from public policy, legal, trust and safety, who enforce our advertising policies. We have a large trust and safety presence in Dublin and in the lead-up to the referendum, these teams increased their vigilance across our products and platforms to ensure the advertisers were complying with their policies. We did not see any illegal activity on our platforms but we did see an increase in foreign spend closer to polling day and that we concluded that this increase gave rise to genuine public concern and showed the gap between the law and the public expectations and that is why we decided to pause the advertisements around the referendum. On the question asked as to whether this was successful, I do not know if that is the metric we would use. We did what we needed to do to ensure the safety of our platforms and users. As to what we will be doing next, we are looking at that right now. We understand there could be more referendums coming. There are obviously elections around the world. In the United States right now we are working to roll out some transparency tools and we are looking at how we can scale them internationally because we think they speak to a lot of the objectives of the Bill, such as verification of an advertiser, transparency on the advertisement of "paid for by", a transparency report that shows the spend of an advertiser and the dates of the advertisements and then a creative library that lists each of the advertisements. We think this will bring true transparency to political advertisements online, and be really good not only for users but for democracy. My colleague may wish to add to what I have said.
Mr. Ryan Meade:
I might address the questions on the definitions. It is important to bear in mind that I totally appreciate what Deputy Lawless is trying to do in terms of using existing definitions. That makes a lot of sense in terms of trying to strive for consistency. A broadcast advertisement and an online advertisement are not the same thing. There are differences. Broadcast advertisements are by definition are limited, in that they are limited by the amount of airtime that a broadcaster has to give them so there is a much lower volume in terms of the interaction that has to happen in deciding whether an advertisement is covered by the definition. Online advertisements by their nature are often self-serve. People go online and set up their creative and so on. As the Deputy said, it is almost certainly an issue that can be worked out as the Bill progresses because I think a definition could be found that would capture it correctly but the history of electoral law shows one does not necessarily have to have the exact same definition for every type of activity as long as the overall approach is generally consistent.
I have one or two follow up questions. I thank Ms Carosi Dunn for her reply, but I may have missed the point. May I ask her to repeat it, especially the part after the factors leading up to the reason for the ban?
That is okay. I thank Ms Carosi Dunn. That makes sense.
I have a question for the National Union of Journalists, NUJ. I thank Mr. Dooley and Dr. Foley for their contributions.
It was suggested last December during the Second Stage debate on the Bill that there may be a burden imposed upon newspapers having to display transparency notices along with advertisements where they have an online presence. How concerned would they be about that? Would fellow journalists share that concern?
Mr. Séamus Dooley:
There are many challenges facing journalism, regardless of platforms and the greatest challenge is to win back trust that has been lost. It seems to me that one of the ways of securing trust or winning it back is transparency in relation to advertising. While I note the concerns, I do not think in regard to newspapers that this is a real fear. I think the return far outweighs any burden. As a trade union official, I can tell the committee that any mention of regulation of any type is met by a stock phrase which is that this is an additional regulatory burden. It goes with the territory but in this case I think the return in terms of giving people a guarantee of knowing where something is coming from is important.
Going back to the referendum campaign, the real problem about the campaign was the lack of transparency in the spend, people seeing advertisements on YouTube and not knowing where it was coming from. In any election or referendum campaign, robust debates and strong differences of opinion are inevitable and are part of our democracy. The problem arises when one does not know with whom one is debating and one does not know who is funding the debate. My colleague Dr. Foley may wish to add his comments.
Dr. Michael Foley:
I reiterate that point. One of the issues - as I am sure many people in this room will know - is that there are certain types of advertising that appear in the media that cause us to raise an eyebrow. They might possibly appear in property pages or elsewhere and we sort of ask ourselves whether that is an advertisement or whatever. We look at the copy. This is very damaging to journalism. Given the pressures that journalism is under at present, they do not need that anymore. Anything that brings in transparency within a context of advertising can only be good for journalism.
We are making a clear distinction between advertising and editorial copy, whether online, in a newspaper or on the radio or television. At one level, the Bill has very little to do with the National Union of Journalists but anything that helps people trust the information they receive, whether editorial, advertising or otherwise, and from wherever it comes, can only be good for journalism. That is why we broadly welcome the Bill, allowing for the various objections or points that have been made.
As sponsor of the Bill, I found it a very useful engagement and I thank the witnesses for their attendance. I have noted the points raised today and the submissions sent to the committee. Some very good, strong and valid considerations have been raised and I will consider them in preparing for Committee Stage. I presume the two Departments will submit amendments on Committee Stage on behalf of their respective Ministers. There will be further pre-legislative scrutiny of the Bill after the recess. It has been a very useful engagement and I thank all present for their involvement. I think there is a consensus that legislation is needed in this area and it is about fine tuning that legislation. As always, the devil is in the detail. I look forward to the next Stage.
I thank Deputy Lawless. On my behalf and that of the committee, I thank the witnesses for their attendance. It was a very worthwhile engagement. I hope that Ms Dunn gets a chance to travel around Ireland now that she is here and to enjoy the sunshine.
It is proposed to publish the opening statements and all submissions received on the committee website. Is that agreed? Agreed.