knowledge 6 March 2023 |

The Electoral Reform Act 2022: Ireland votes but the EU abstains

The Act

The Electoral Reform Act 2022 was signed into law on 25 July 2022. The first part of the Act was commenced by S.I. No. 512 of 2022 on 13 October 2022 dealing with the simplification of the registration process for voters.

The Act provides the legal basis for a range of significant electoral reforms. These reforms include the following key highlights:

• The establishment of an Electoral Commission;

• The modernisation of the electoral registration process to improve the accessibility and integrity of the voting process;

• The regulation of online political advertising during electoral periods to improve transparency and reduce the risk of interference from outside sources;

• The introduction of new measures to protect the electoral process from the dissemination or publication of online disinformation and misinformation; and

• The development of existing regulations on political donations with a particular focus on donations from non-citizens located outside of Ireland.

Regulation of Online Content

Part 4 of the Act (Regulation of Online Political Advertising) introduces new obligations on online platforms. These obligations include flagging political advertisements on their platforms, maintaining an archive of such advertisements and obtaining a statutory declaration from advertisers as to the accuracy of the information contained in the advertisement. It also requires platforms to have a “button, icon, tab, hyperlink or other connection” connecting the user to a transparency notice, the required contents of which is set out in granular form at sections 121 (2)(a)-(j) of the Act.  Requirements include whether micro-targeting was applied in the placement, display or promotion of the online political ad, and the total amount paid for the ad. Section 121(3) requires the platform to update the transparency notice in real time.

Part 5 of the Act (Regulation of Electoral Process Information, Online Electoral Information and Manipulative or Inauthentic Behaviour) creates new obligations for platforms,  including a requirement to notify the Electoral Commission of any disinformation, misinformation or manipulative and inauthentic behaviour published on its platform of which it becomes aware. Section 149 of the Act requires online platforms to put user friendly mechanisms in place allowing users to report any such content. Online platforms which fail to comply with this requirement can be liable on summary conviction to a class A fine and/or up to 12 months imprisonment, or, on indictment to an unlimited fine and/or up to 5 years imprisonment. It is worth noting also that any officer of a company which, through wilful neglect or consent, allows an offence to occur can be prosecuted personally.

Part 4 and Part 5 of the Act are not yet in effect, requiring a commencement order under section 1(5) of the Act. Despite this, key stakeholders have already raised concerns as to how these provisions will interact with the existent EU framework for online content regulation and, in particular, whether it breaches the current regulatory rules on intermediary liability.¹

Notification to the European Commission

Both Part 4 and Part 5 of the Act were notified to the European Commission under the technical regulation information system (TRIS) notification process which requires any technical regulation on information societies to be notified to the European Commission before adoption. This process seeks to ensure that impending national legislation does not conflict with EU legislation or create barriers to trade before it is in force.

In response to the notification, the European Commission issued requests for supplementary information in respect of both Part 4 and Part 5, which culminated in a detailed opinion on Part 4. The opinion found that aspects of the notified draft legislation were incompatible with articles 14(1) and 15(1) of the E-Commerce Directive. In particular, the Commission cited its concern that the notified draft imposed criminal liability on platforms which failed to take measures against an illegal advertisement where the platform becomes aware or is made aware of information which would provide reasonable grounds to believe that the buyer or funder of the political advertisement is prohibited. The Commission also identified that the notified draft imposes liability on a lower knowledge standard than the ‘actual knowledge’ standard required under the E-Commerce Directive.  It further added that the notified draft risked imposing a general fact-finding obligation and content monitoring obligation on intermediary service providers, in contravention of Article 15 of the E-Commerce Directive.

The Irish Government has issued a confidential response to the European Commission on the detailed opinion.  The response was required to detail all actions the Government will take to resolve the issues raised by the Commission with the notified draft but no details of the substance of the response have been released to date.

Comment

The Electoral Reform Act 2022 is another example of the willingness of EU and the Irish legislature to improve the regulation of the rapidly-changing world of online content. With the entry into force of the EU Digital Services Act² and the Online Safety and Media Regulation Act 2022 at the end of last year, 2023 is primed to be a year of change for all online platforms. We will be tracking how the Irish legislature intends to take on board the Commission’s view.

Also contributed to by Matthew Stenson and Peter Brennan