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Minister Phelan's speech at the Open Policy Forum on Regulation of Transparency of Online Political Advertising

Published on Thursday, 06 Dec 2018
John Paul Phelan TD

Thursday 6th December 2018 – St Patrick's Hall, Dublin Castle

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Introduction

  • Distinguished guests, colleagues, ladies and gentlemen, thank you for inviting the Department to appear before you this morning.  I welcome this opportunity to discuss advertising in the political and electoral sphere.

Freedom of expression

  • The right of individuals and organisations to hold and/or promote political opinions and to support or critique the political views of others is an integral part of our democratic processes.
  • Indeed, as the well-known American novelist and lawyer Scott Turow once stated “widespread public access to knowledge, like public education, is one of the pillars of our democracy, a guarantee that we can maintain a well-informed citizenry.”
  • A sentiment that I wholeheartedly support!  I accept that during electoral events (in particular those concerning divisive social issues), people can express strong views that others may not agree with, or may take offence at.
  • However, in a pluralistic, healthy and tolerant society, it is incumbent upon those with opposing views to put forward their own arguments, supported by logic, reason and fact, to counter any disinformation that may be purported over the course of an electoral campaign.
  • Ultimately, diversity of opinion supports balanced and quality debate in any well-functioning democracy and may better inform the electorate on matters of key political importance.  It is for these reasons that the provisions under our electoral laws in relation to political advertising are quite specific and narrow in focus.

Online advertising

  • My colleagues in Government and politicians from all political parties are acutely 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.
  • Indeed, many of us advertise on social media platforms ourselves during our electoral campaigns as can be seen from expenditure statements returned to the Standards in Public Office Commission.
  • In general however, the State doesn’t have any specific regulatory requirements in respect of online political advertising.  Accordingly, 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 underway in a number of foreign jurisdictions.
  • 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.

IDG Report

  • In response to these concerns and in recognition that a multi-dimensional 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.
  • The group’s first report, which was published in July of this year, looked at issues concerning the security of the electoral process in Ireland, taking into account the risks that apply across the whole process; it also included a summary of the most common or frequently occurring factors in other jurisdictions.
  • In broad terms, the report noted that risks to the electoral process in Ireland are relatively low, taking into account the mitigation factors that are already in place.  Nevertheless, it was acknowledged that the spread of disinformation online and the risk of cyber-attacks on the electoral system did pose more substantial risks in broad alignment with recent international experience.
  • Furthermore, the report put forward a number of proposals to address the gaps identified and offer a way forward on a more cohesive and coordinated approach to safeguarding of the electoral process from disinformation and security risks.  It acknowledged that actions arising from such proposals will require widespread support from both political and civil society.

Key proposals

  • The key immediate steps are to expedite the establishment of an Electoral Commission and to examine the possibility of regulating the transparency of online political advertising.
  • As mentioned in an earlier presentation, a public consultation will be announced by my Department in the coming days in connection with the establishment of an Electoral Commission and I hope that everyone here today will fully participate in that process in due course.
  • Electoral Commissions carry out vital functions around the world and generally independently monitor and hold to account other bodies that have been given roles in the electoral process. This could include monitoring those responsible for managing an electoral register, for example, or those actually managing the polling or, conceivably, monitoring the performance of any organisation that has a role in implementing and enforcing rules or procedures around political advertising. So, they will be an important piece of the electoral process jigsaw once they are established and I expect that they will play a key role in ensuring that public bodies and office holders continue to discharge their functions effectively.
  • However, today we are here to discuss transparency in connection with online political advertisements and whether regulation is required either along the lines put forward by Deputy Lawless in his Online Advertising and Social Media (Transparency) Bill 2017 or whether alternative proposals need to be examined.
  • In our deliberations here this morning, there are a number of key issues that we need to consider in the event that regulation, rather than a voluntary-type code, is viewed as the preferred means to provide for transparency in political advertising.

Challenges

  • Firstly, it is important that there can be a general consensus as to what constitutes a political advertisement.  Should it be broad in nature or should it be narrowly focused?
  • Secondly, at what point in time should any possible transparency requirements apply, for example, during prescribed electoral periods only, during an extended-type electoral period or at all times?
  • Thirdly, how do we balance the right to freedom of expression with any future regulatory requirements around transparency?
  • In the context of enforcing any possible regulatory requirements, how would the extra-territorial nature of social media platforms and website providers as well as the difficulty associated with determining the ownership or control of social media profiles/advertising sponsors be addressed in a means that treats all who wish to advertise legitimately in a fair and equitable manner?
  • Clearly, billboards, posters and notices are tangible and are attached to physical infrastructure in the State; if they are not compliant with the law, this can be readily discerned and 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 of our jurisdiction and may comply with whatever requirements may be in force in that jurisdiction.
  • Lastly, what information should be contained within any possible regulatory requirements on transparency?  Should the focus be solely on introducing similar requirements to those under the Electoral Acts or should greater information be required given the relatively unique characteristics associated with online advertising (such as the extent to which an advertisement can be disseminated, the speed at which it can be disseminated and the means by which the message can be tailored to specific groups of the electorate)?

Conclusions

In conclusion, regulating in this technically and legally complex area, presents a number of particular challenges which will need to be fully and comprehensively addressed if there is a consensus to provide for transparency in this area by means other than voluntary industry-led agreements.

Thank you for your attention and I look forward to hearing views from the floor.

 

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