Wednesday, 13 December 2017
Online Advertising and Social Media (Transparency) Bill 2017: Second Stage [Private Members]
I welcome the opportunity to speak on this Bill. Simply put, the Bill puts forward a number of important provisions, particularly the one that political advertisements would indicate who paid for them. The intent and basic principle of the Bill in regard to transparency is a welcome step forward. However, the scope is beyond the political party, the politician and the political process and if the Bill is to progress, it will need to be heavily amended.
The question arises as to whether the transparency notice that would be legally required under the Bill will have any power. What power will it have? What about the penalty or obligation on the social media platform itself? How would it deal with accounts outside the State? I read the Bill very carefully in order to ensure that I understood what is involved but some of the provisions are very broad. In terms of the transparency notice, who will have the power to say "Yes" or "No" to provide this notice and, ultimately, the power to prevent online political advertising? That is a strong power to give to anybody and that aspect will need to be clarified. On my reading of the Bill, the Minister, or his or her appointee, will have a strong power and we could possibly have censorship. I am not saying that the Minister, Deputy Naughten, might have inclinations to censor anybody but I refer to people who have sat in his seat. When people such as Conor Cruise O'Brien - "The Cruiser" - and some individuals from this side of the House were seated over there, they had strong inclinations to censor various organisations on different grounds. I am concerned about the intent and scope of the Bill in this regard.
On the provisions of the legislation, there is merit in the provision in section 6 relating to the offence of using a bot and multiple accounts. The word "bot" is new to the English language. The Bill would create a new offence of operating a bot for political purposes, defining a bot as a user with 25 or more individual accounts or profiles online, operated by a single user but masquerading as a range of individuals with separate accounts.
We have to examine the overall scope and intent of the Bill, as drafted, and the potential broad application of its provisions. We have to examine who and what would fall within the remit of Bill. The definition states "directed towards a political end" but the application of that wording is very wide. For example, it encompasses a matter of political interest or a matter that is intended to go before the Oireachtas, the Assembly in the North when, please God, it is up and running soon, the EU Parliament or even a local authority. That could be a county or town council. What constitutes a “matter of political interest”? How would that be treated before the courts as the Bill is currently drafted? How many matters in society are of political interest?
I often ask people who say they are not politically minded if they are worried whether there is a footpath outside the door or water coming out of the tap. If they are, they need to be interested in politics. People make political decisions to have water coming out of taps, provide footpaths, street lighting, tar on the road and hospitals. Very few things in society are not based on political decisions.
The Bill also indicates that a "political end" would include issues relating to trade unions and disputes in the workplace. That is going into dangerous territory in terms of industrial disputes. We question the placing of that in the Bill. Section 3(2) states, "Online political advertising shall not be paid for from monies ... voted by the Oireachtas". What does that take in and how far would we go with it? Where is the policy behind the Bill directed? Is it directed at the Government's communications unit, which was referred to earlier? I call that unit the "Ministry of Truth" of the Fine Gael Party. I do not see the Independents figuring prominently in the advertising campaign overseen by the unit. In fact, I have not seen an Independent feature in it yet. The Minister has responsibility for communications but I have not seen him appear in any of those advertisements. Perhaps his hour will come. The Government's communications strategy, paid for out of public funds, is completely inappropriate and the nature of the establishment of this unit is leading to the politicisation of the Civil Service and a great deal of cynicism.
Of course Governments have to give out information, but we must be very careful about how this is done. The €5 million unit is paid for by the taxpayer essentially to promote a single party. This might reveal something about Fine Gael in terms of its past and the strain of totalitarianism in it.
To put this sum of money into perspective, the Government put only €7 million into the renewable heat scheme to combat climate change. We welcome any funding for that, but we would like to see more funding for it. The €5 million might have been added to the €7 million so that €12 million in total was dedicated to the renewable heat scheme. If the intent of the Bill is to address issues such as the communications unit we welcome this intent, but why is there such a broad overall interpretation in the Bill? When we are talking about trade unions and industrial disputes we are really getting into dangerous territory.
To return to the broad scope of the Bill, it mentions promoting candidates for election under the definition of "toward political end", but it goes beyond politicians and political parties. If its intent were related to electoral issues and political candidates why is it not placed within Acts specific to that area, such as the Ethics in Public Office Act 1995, the Standards in Public Office Act 2001 or under the Electoral Act 1997? It is not being placed within such legislation where it might be better positioned. As it is drafted, its direction is beyond the political sphere or the politician and one has to be careful how far one goes with that.
I understand we are in a new area and that the correct wording in legislation can be difficult to find, but it is extremely important that we draft legislation that is specific and that has clear intent. We are in danger of crossing the threshold of free speech and censorship in this Bill as it is currently drafted when we try to regulate a legitimate method of political expression and give this power to a Minister or the State. It mentions that people might seek to influence local authorities. A local residents' group may want to run a small campaign to get a water scheme on a road or for street lighting. The broad definition currently opens up all sorts of dangers for even localised issues such as those outlined.
What of the media platforms themselves? The obligation will not be on the online social media platforms as the Bill currently stands and if there is no legal obligation on these platforms I do not see how this legislation would work in practice. Without specific obligations and penalties on these platforms I am not sure how this Bill will function. We are talking about paid advertisements. Should those benefitting financially from the advertisements not face obligations?
In terms of the offences under section 5 of the Bill, a breach of this legislation will potentially carry a fine of up to €10,000 or a five year prison sentence, or both, for using an advertisement without the transparency notice and the consent of the State. If an individual wanted to use an online advertisement, for example in support of an industrial dispute going on within the State, they could face five years in prison and a €10,000 fine. These are heavy penalties. It is a pity some parties in this Chamber were not as forceful when the public wanted them to go after the bankers.
This Bill does not directly address "fake news". Some of the media today have created a diversion by saying that this Bill will go after fake news. It does not in itself give direction in regard to the content of a message, but it does create some accountability around the source of the advertising. It should be remembered that the idea of fake news was not brought about by social media. In the 19th century Punch magazine was popular in England and it was fake news. There were other examples of it in this country. It has always existed in some form of media content.
Social media is a legitimate platform for political debate and messaging. It is a good avenue for giving people a voice and allowing political expression. Some people may go overboard with it sometimes and often TDs and county councillors do not get treated fairly on social media. However, we have to be careful that the individual is not prevented by an arm of the State from legitimate political expression. Social media is used by many community groups to put forward a message and aid their campaigns. Preventing or hampering this in any way should not be put in legislation. This is referred to under this Bill.
As legislators we are not off the blocks when it comes to the online world and issues such as online bullying. I believe a large body of law will develop in this area in the very near future. We need to be careful and not have State involved in censoring online political expression.
The Bill does not appear to deal with people operating outside the State, which is unusual considering the allegations about Russia and America. There have been cases in the past were people have sought to influence elections or campaigns in this country. There was an example during the Brexit referendum, when a wraparound which cost £500,000 was supplied courtesy of an organisation called the DUP. It appeared in the London Underground, much to the bewilderment of commuters in the greater London area. The issue of people who might seek to influence what happens here from outside the State must be taken into consideration.
If this Bill is to pass to Committee Stage it will require extensive amendments. We have to test whether it can withstand that and if it is amendable. The spirit and intention of the Bill is very good and I compliment Deputy Lawless for bringing it forward. Overall we are in favour of it going to Committee Stage to see whether changes can be made to the Bill to improve it. Our observations are not intended as an attack on anybody, but are made in a constructive way to highlight some of the dangers and weaknesses we see in the Bill. I recognise that it is a difficult area to legislate for and I believe it will need extensive work at Committee Stage. It may be worthwhile having some experts into the committee. It can then be brought through to Committee Stage and amended. The debate that has started is good. It is a matter which must be addressed. We cannot insulate ourselves from it. It is an issue that is going to come up over and again.
The Minister for Communication, Climate Action and Environment, Deputy Naughten, is an Independent Minister. I would appreciate it if he would speak to other members of the Cabinet about the €5 million that has been allocated to the communications unit. It could be better spent. I do not have an issue with a Government communicating what is available and changes to budgets and things of that nature. However, when the unit is being used to promote individual Ministers belonging to one part of the Government we are straying into dangerous territory.