Malcolm Noonan (Carlow-Kilkenny, Green Party) | Oireachtas source

As Senators are aware, informed decision-making is at the heart of the democratic process and it is crucial for meaningful exercise of the right to vote. When voters are misinformed they may choose a candidate or vote in favour of a constitutional change in violation of their true preferences. Behaviours that interfere with informed decision-making can remove accountability from electoral processes and undermine trust in free and fair elections.Traditionally, we have trusted the professional values of the media and the perception of the public to filter all the noise that surrounds our electoral events, but the online world now provides unprecedented opportunities to spread false or misleading information very quickly and create a false impression that particular position has widespread support, thus giving it unwarranted credibility. The growth of interference with elections and the increased number of people who rely on the Internet and social media as their main source of news make this problem an urgent one. There is a real risk that future electoral processes in Ireland will be interfered with by foreign and domestic entities acting in bad faith and for selfish ends. Not only does this create an immediate potential for undesirable or extreme political outcomes, but it also serves to undermine the trust and confidence of the Irish electorate in the political process. Such disengagement poses a long-term threat to civic society.

Against this background and having regard to similar issues that arose during pre-legislative scrutiny of this Bill, when publishing the Electoral Reform Bill in 2022, my colleague, the Minister for Housing, Local Government and Heritage, Deputy Darragh O’Brien, signalled that he had asked the Attorney General to prepare proposals and options for inclusion in the Bill with a specific focus around the protection of the integrity of our electoral processes that could include a role for the electoral commission in this regard.

To progress this critical issue, a suite of amendments to the Electoral Reform Bill were recommended by the Attorney General and approved by Government, which would protect the integrity of our electoral processes in the online sphere. These new provisions, which were published on 10 June last, will place Ireland in much better position to combat the potential threats to the integrity of our elections and referendums.

With this in mind, I am proposing amendments No. 142 to amend the Long Title of the Bill in order to provide for the insertion of a new Part 5 in the Electoral Reform Bill. In effect, the amendment to the Long Title is proposed so that the Bill can provide for a regulatory framework to protect the integrity of elections and referendums against the dissemination or publication of online disinformation, online misinformation and manipulative or inauthentic behaviour online. This will allow for the insertion of a new Part 5 in the Bill which will provide for the regulation of the electoral process information online, electoral information and manipulative or inauthentic behaviour to further protect the integrity of elections against online misinformation and online disinformation. These provisions were published by my colleague, the Minister, Deputy Darragh O’Brien, on 10 June last and are also subject to a notification of the European Commission in accordance with the requirements of Directive (EU) 2015/153, that is, the technical regulations information systems notification procedure.

The insertion of a new Part 5 into the Bill and the additional functions assigned to the electoral commission to protect the integrity of our elections and referendums gives rise to a small number of consequential amendments to Part 2 of the Bill. Amendments Nos. 1, 7, 26, 27 and 68 all relate to the consequential amendments, having regard to the insertion of the new Part 5 into the Bill.

At the outset, there is a need to insert a new section 3 into the Bill to provide that the electoral commission may by way of an order prescribe the timeframe for an election campaign period in relation to any election or referendum. In effect, this will allow the electoral commission to bring forward the electoral period to a specific time before the making of a polling day order for the purpose of exercising its functions to protect the integrity of elections under Part 5 of the Bill.

A second consequential amendment relates to section 9(4) of the Bill, which sets out recommendations for the appointment of ordinary members to the electoral commission. This amendment provides that while making recommendations on the appointment of an ordinary member, expertise in information and communications technology and its use in context of election or referendum campaigns will be a desirable characteristic for an ordinary member to have, given its functions in respect to both online political advertising and on preventing the spread of certain types of disinformation, misinformation and inauthentic or manipulative behaviour online.

Third consequential amendment provides for the insertion of a new section 29(1)(i) to Part 2 of the Bill. It provides a new function for the electoral commission to protect the integrity of elections and referendums against the dissemination or publication of online disinformation, online misinformation and manipulative or inauthentic behaviour online, in accordance with provisions of Part 5.

A final consequential amendment relates to the definition of “online platform”, which is already defined in section 118(1) of the Bill in the context of online political advertising. It is proposed to amend the opening line of this definition to provide that an “online platform” means any host, operator or provider of a website. This will ensure that the definition of “online platform” in Part 4 will broadly mirror that provided in the new Part 5 of the Bill, that is, the new section 142.

In respect of Part 5 itself, in order to better understand the principal threats to the integrity of elections and perceptions around the integrity of how elections are conducted, a number of key concepts are set out in the new Part 5, which I will now elaborate on.

First, “disinformation” is defined in the new Part 5 to refer to false or misleading content that is spread with intention to deceive and which may cause public harm. Second, “misinformation” is broadly taken to mean false or misleading content shared without harmful intent, though the effects may still be harmful. Finally, a broad principled approach is taken with regard to the meaning of “manipulative or inauthentic behaviour”, given this type of behaviour is ever-evolving. In this regard, “manipulative or inauthentic behaviour” means tactics, techniques and procedures that: constitute a deceptive use of services or features provided by an online platform, including user conduct, having the object of artificially amplifying the reach or perceived public support of particular content; are likely to influence the information visible to other users of the platform; by reason of their nature, character, context or any other relevant circumstance give rise to the interference that they are intended to result in the dissemination, publication or increased circulation of false or misleading online electoral information; and may cause public harm.

Following on from these broad concepts, the provisions of the new Part 5 will provide the electoral commission with monitoring and investigations functions with regard to the dissemination or disinformation relating to online electoral information and misinformation relating to online electoral process information, as well as functions to prevent manipulative or inauthentic behaviours online. These powers of investigation may be used by the electoral commission or under a new power delegation by its chief executive, authorised officers or members of staff under general direction of and subject to such conditions as may set out by the commission. The new Part 5 will: require online platforms to report possible disinformation, misinformation or manipulative, inauthentic behaviour in the online sphere to electoral commission at the beginning of an electoral campaign period; require online platforms to put in place a notification mechanism for users to report possible disinformation relating to online electoral information and misinformation relating online electoral process information; provide for the establishment of an advisory board to provide advice to the electoral commission on the nature and effect of disinformation and misinformation on the use by the commission of its powers under this Part; provide for the establishment of a stakeholder council to provide advice and opinions to the commission generally and in relation to the preparation and use of codes of conduct under this Part; and provide powers to the electoral commission in respect of its monitoring and investigatory functions, including the power to the chief executive to issue, during an electoral campaign period, a take down notice, a correction notice, a labelling order, an access blocking order or a notice containing a statement that the online content has been affected by unlawful bot activity. An appeal against any of these notices or orders may be made to an appeal panel established by the electoral commission and any person so affected by such a notice or order may also seek relief by way of an application for judicial review. In addition, the new Part 5 will require the electoral commission to consider the impacts of its actions on specified rights under a constitution. It provides that the electoral commission may publish codes of conduct that will be developed in consultation with an advisory board and a stakeholder council. Codes of conduct may be optional or mandatory and may apply to online platforms, candidates at an elections, political parties, third parties and other relevant persons. Further, it provides for offences and penalties for a failure to comply with any of the proposed notices or orders for breach of mandatory codes of conduct, for breaches of the obligations of online platforms, for the dissemination of misinformation and disinformation, and for using a bot to cause or manipulate online presences directed towards influencing elections, misleading persons as to the bot’s artificial identify or causing public harm. Offences may be prosecuted summarily or on indictment, depending on the severity of the offence.

On citizens’ rights, recent experience across the world demonstrates that many of the most pressing threats to the integrity of democracy and electoral processes are based on harmful techniques for distorting or manipulating public expression. In that context, any measures to counter these threats will likely have some impact on our rights under the Constitution and under the European Convention on Human Rights, in particular, the right to freedom of expression.However, notwithstanding these rights, it is important to note that the State has also obligations, under both the Constitution and the convention, to support and protect each citizen's right to become informed about his or her democracy in a free and unfettered manner and the right of both citizens and representatives to participate in robust political debate under a fair and equal process. In this regard, the new provisions explicitly require the electoral commission, in considering the exercise of its powers under this part, to consider and give due weight to the right to freedom of expression, the right to freedom of association, the right to participate in public affairs and the obligation of the State to defend and secure the fairness and integrity of elections and referendums. It will be essential that any actions proposed by the electoral commission under this part will pass a proportionality test which will require assessment of a number of key factors, including the nature of the conduct being targeted and the extent to which it threatens election integrity to ensure that such actions are necessary and compatible within our rights under the Constitution and the European Convention on Human Rights.

In conclusion, the insertion of the new Part 5 into the Bill and the additional functions it provides to the electoral commission to protect our democracy against the spread of disinformation, misinformation and manipulative or inauthentic behaviour online will, I believe, place Ireland in a much better position to combat the potential threats to the integrity of our elections and referendums into the future.