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Private Members Bill Online Advertising and Social Media (Transparency) Bill 2017

13th December 2017


Attempts to suborn or thwart democracy are as old as democracy itself, and there is a long and less than distinguished history of State and non-State actors alike engaging in such activities. Moreover, many States – ours included – have adopted a series of measures to reduce the risk of this occurring, including rules on the transparency of media ownership and the use of funds from international sources for political activity.



As everyone in the House will be aware, there are significant indications that various recent elections around the world have seen concerted attempts to manipulate public opinion by exploiting online media - included carefully targeted online advertising and the use of a number of different means to use social media to manipulate the views of small but significant components of the electorate. This is a very serious issue – it appears that entities are exploiting the very legal protections we have around freedom of speech, online as well as off, to turn social media and online advertising into an antidemocratic tool.


These technologies and services are rightly heralded as being profoundly useful for democracy – they allow discourse and debate on political issues to be opened up to everyone, no matter where they live. But it seems clear that they also allow actors to target and manipulate public opinion in previously unheard of ways.


Moreover, this activity is particularly invidious because available counter measures are so few, and so difficult for democracies to grasp. These techniques work precisely because democracies allow for and facilitate freedom of speech. Democracies don't censor media, or intimidate journalists. And democracies don't control access to the internet, or seek to control political speech on online platforms. Those who seek to manipulate elections in Europe and America know this, and see it as a weakness that they might exploit.


While I recognise that Deputy Lawless' Bill seeks to raise important issues in respect of the proper functioning of our democracy and of the security of the State, I am afraid that I cannot support it as it presently stands.


The Bill seeks to engage in extremely complex issues in a very broad and general way, and while it has a number of practical and factual issues, and a series of inherent difficulties in terms of implementation related issues, perhaps the most serious issue with the Bill are the unintended consequences it would have for the democratic process itself.


I fully acknowledge that the thrust of this Bill is aimed at reducing the risk of external actors seeking to create false political campaigns, but it seeks to legislate for very specific issues in an extremely broad manner, and in a way that would likely give rise to a number of unintended consequences that would make the situation worse, rather than better.


Firstly, the definition of a 'political end' is so broad that the Bill essentially prohibits the spending of public money of any kind, on advertising online, any matter dealt with by the State, or funded by the State in any way.


For example a public meeting organised by the Local Authority on the proposed closure of a local landfill - this could be prohibited online.


Equally, because the Bill makes no provision for the enforcement of the measures contained in it, it essentially places the responsibility for making the decision on what is or is not 'political advertising' in the hands of online advertisers and social media companies.


In both the case of the prohibition of the use of public funds in Section 3 and the proposed Transparency Notice system in Section 5, this means that private operators, based outside the State will be required to make decisions fundamental to the functioning of democracy – who is or is not allowed advertise. In that context, it is entirely possible that reputable companies will choose to not carry political advertising.


Perversely, parties based outside the State are not bound by this measure at all, so the Bill summarily fails to deliver on its stated purpose of providing greater transparency in online advertising, and may even make the situation worse, because of its effect in suppressing legitimate advertising by the State, or anyone in receipt of State funding.


Perhaps most critically, the Bill could have the effect of placing unintended prohibitions on political advertising in a number of ways, including by potentially banning the advertising of TDs' clinics both online and offline if the paper is published in electronic form.


Identifying the owner of an account on Social Media is not an easy or straightforward task, and in many cases both the platform and the individual will be outside the State, and beyond the reach of this Bill. In addition, the majority of online advertising is programmatic and placed by third party online advertising sales houses rather than the online platforms themselves.


At the very heart of this discussion are a set of principles that are utterly central to how we deal both with the media, and with emerging challenges associated with the internet.


As Minister, I have repeatedly stated that Ireland will continuously promote an open, global, free, peaceful and secure cyberspace. A cyberspace where fundamental rights and freedoms, in particular the right to freedom of expression, access to information, data protection, and privacy and security, as well as the core EU values and principles, are fully applied and respected both within the EU and globally. Once we start to tamper with online free speech, or try to police who does or does not have the right to use social media, we run the risk of becoming more like those who would abuse the system in the first place.


Colleagues, Deputy Lawless has identified a very serious issue, but I am concerned that this piece of draft legislation will, in many ways create more problems than it solves.


I would respectfully suggest that the best way of dealing with this would be to draw together a group of experts to examine these issues, including us as professional politicians, electoral law specialists and people from the relevant Government Departments.  I believe that the best people to structure this group is the Committee on Procedure and Privileges headed by the Ceann Comhairle.


I would also suggest that this should only happen once the key investigations into recent events are complete, including the US House and Senate Intelligence Committee investigations.

Also, I think it's critical to note also that we are far from defenceless against any future attempt to manipulate democracy here.


Leaving aside the rules in place around political funding from abroad, ensuring that we have properly funded and independent public service broadcaster is a critical backstop to democracy, as is our system to ensure media plurality in media mergers.


Ensuring that our education system continues to teach media literacy – which is the case even in the CSPE curriculum at Junior Cert - is also key. And on the specific question of social media, I am assured that the social media companies are paying increased attention to multiple and fake profiles on sites, and are taking them down on a daily basis.

There are new and evolving challenges in terms of the abuse of targeted online media though, and I agree entirely that the State may need to take future action in this area.


However, in my view it is entirely premature to do so when we don't even know precisely what occurred in other jurisdictions, and when the EU as a whole is considering how best to engage with these types of emerging threats.


After all, a free and open media is critical to the functioning of democracy, and we must take great pains to ensure that we do not compromise on these principles, in search of simplistic solutions to complex problems.





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