Online Political Publicity

Table of Contents

Online Political Advertising

Electoral Reform Act 2022 out the regulatory framework to ensure transparency regarding online political advertisements purchased for placement, display, promotion or dissemination during electoral periods. This is required to be commenced.

The general Electoral Act provisions on advertisements apply to the purchase, whether directly or indirectly or through an intermediary, for placement, display, promotion or dissemination on an online platform of a political advertisement during an electoral period.

Each online political advertisement purchased for placement, display, promotion or dissemination during an electoral period shall be clearly labelled as a ‘political advert’ and shall include a button, icon, tab, hyperlink or other connection which shall connect the user to a transparency notice on the online platform. A transparency notice shall be maintained and updated in real time and shall display:

the name, postal address, email address and website address of the buyer of the online political advertisement and, where different, the name, postal address, email address and the website address of the person who paid for the advertisement;
confirmation of whether micro-targeting was applied and, where applicable, a description of the criteria used and the online platform’s policy in respect of any such micro-targeting;
confirmation of whether the target audience contains a ‘look-alike’ target list and, where applicable, a description of the characteristics of the target audience and the online platform’s policy in respect of any such ‘look-alike’ targeting;
the amount paid for the online political advertisement, including the amounts paid for content creation and for online placement, display and promotion;
the number of days during which the online political advertisement will be placed, displayed and promoted on the online platform and the start and end date of the online advertising campaign;
the estimated size of the audience that the buyer intends the online political advertisement to reach and the number of times the advertisement has been viewed by users;
an indication of the election or referendum to which the advertisement relates;

a link or connection to the online platform’s archive or library which shall be established under this section; and

information and contact details relevant to the online platform where a person may notify the platform that an online political advertisement does not comply with the requirements.

Duties of Platforms

Online platforms shall take measures to verify the identity and the address of the buyers of online political advertisements, shall request information and documents for that purpose and shall keep records of the measures applied and information, documents or records obtained by it. Where an online platform cannot verify the identity and address of the buyer of an online political advertisement, it shall not place, display, promote or disseminate the advertisement on its platform.

There are specific measures that online platforms must take to verify the identity of the buyers of online political advertisements and to confirm their addresses. Verification of identity shall be confirmed on the basis of official documents from a Department of State, a national authority of the State or from the national governmental authorities of another state. Confirmation of address shall be ascertained by official documents, documents from either a regulated financial service provider or other utility or service provider.

In addition, the online platform shall obtain from the buyer of an online political advertisement a written statement, verified by a statutory declaration, confirming that:

that the funds for the purchase of the online political advertisement have been provided by the buyer; or

if the funds have been provided by a person other than the buyer, the identity of the person who has provided the funds for the purchase of the online political advertisement and that the person is not prohibited by law from purchasing such an advertisement for placement; and
that the buyer of the online political advertisement is not controlled by any other person, company, body corporate or unincorporated body of persons, or if the buyer is so controlled, the name and address of the person exercising ultimate control over the buyer.

An online platform which is unable to apply the measures set out in this section as a result of any failure on the part of the buyer to provide the online platform with documents or information required shall not place, display, promote or disseminate any online political advertisement purchased by the buyer on its platform.

Placing Advertisement

The buyers of online political advertisements shall provide the necessary information and documents to online platforms and shall comply with reasonable requests from online platforms for additional information and documents as may be required. Where a buyer decides not to provide such information and documents to an online platform, the buyer shall confirm that decision in writing to the online platform.

An online political advertisement shall not be placed, displayed, promoted or disseminated in the State by a person resident at an address outside the State, unless the buyer:

is a natural person and provides evidence that he or she is a citizen of Ireland;

is a company, body corporate or an unincorporated body of persons, and the buyer provides evidence that it is registered in the State and maintains an office in the State from which the buyer carries on one or more than one of the buyer’s principal activities or from which the carrying on of those activities are directed;
is a natural person and provides evidence that he or she is a national of a Member State of the European Union (other than the State) and the online political advertisement relates to an election to the European Parliament in accordance with the European Parliament Elections Act
is a company, body corporate or an unincorporated body of persons, and the buyer provides evidence that it is registered in a Member State of the European Union (other than the State) and maintains an office in that Member State from which the buyer carries on one or more than one of the buyer’s principal activities or from which the carrying on of those activities are directed and the online political advertisement relates to an election to the European Parliament in accordance with the European Parliament Elections Act ; or
is a European political party and provides evidence of its registration under Regulation (EU, Euratom) No. 1141/2014 and the online political advertisement relates to an election to the European Parliament in accordance with the European Parliament Elections Act.

Notices placed or displayed on online platforms by specified persons for the purpose of performing their statutory functions under the Electoral Acts shall not be construed as being online political advertisements under this Act.

Commission Functions

The Electoral Commission shall have a wide range of specified functions to enable it to monitor online political advertisements, online platforms and the buyers of online political advertisements, to encourage compliance which may include the publication of notices containing practical guidance, to carry out investigations, to publish reports and to enforce the provisions.

The Commission may co-operate and collaborate with other statutory authorities whether in the State or elsewhere in connection with online political advertising and related matters.

The Electoral Commission may appoint such and so many persons, including members of the staff of the Commission or other suitably qualified persons, as it considers appropriate to be authorised officers for the purpose of the performance of its functions under this Part. The appointment of an authorised officer shall be in writing and an authorised officer shall be furnished with a warrant of his or her appointment.

Commission Enforcement

The Electoral Commission may, for the purpose of performing its functions, monitor the placement, display, promotion or dissemination of online political advertisements on online platforms by the buyers of online political advertisements and of compliance by online platforms and the buyers of online political advertisements with their obligations under this Part. The Commission may also make arrangements with other suitable people for the carrying out of monitoring on its behalf by way of entering into a contract or otherwise as may be considered appropriate.

The Electoral Commission may examine or investigate or authorise or direct a member of its staff to examine or investigate, or appoint an authorised officer to examine or investigate, any suspected contraventions. The member of staff or authorised officer may make such inquiries as he or she considers appropriate and may require any person to furnish without delay any information, document or thing in the possession or procurement of that person which he or she may require for the purposes of an investigation. An investigation shall be carried out with all due expedition consistent with fairness and efficiency.

Following an investigation, the member of staff or authorised officer shall prepare a draft report of his or her findings and shall provide.

The draft report is sent to any person who, in his or her opinion, may be contravening or has contravened his or her obligations under this Part. The member of staff or authorised officer shall invite any such person to make submissions in writing within a specified period, shall revise his or her draft report having considered such submissions and shall present his or her report to the Commission for its consideration.

Compliance Steps Required

Following consideration of the report and any recommendations the member of staff or authorised officer has made, the Commission shall:

take no further action;
if it is satisfied that a contravention is taking or has taken place, issue a compliance notice to any person whom the Commission considers is contravening or has contravened the requirements of this Part;
publish the report of the investigation; or
if it is satisfied that a contravention is taking or has taken place, bring prosecution in respect of any offence that may have been committed.

The Commission may exercise any of its powers under this Part either during or outside of an electoral period, including the bringing of a prosecution for an offence that may have been committed.

Where the Commission is satisfied that there has been a contravention by a person of the obligations under the Electoral Reform Act 2022, it may serve a compliance notice on that person which shall, among other things, direct that person to take such action to remedy the contravention within a specified timeframe.

Subject to an appeal to the District Court, the Commission may amend, extend or withdraw a compliance notice without prejudice to the serving of another compliance notice in the same matter or in a different matter as the circumstances may require.

Failure by a person to comply with a compliance notice is an offence. Where a person does not comply with a compliance notice, the Commission may apply to the District Court for an order directing the person to comply with the notice. A person may appeal a compliance notice to the District Court.

Appeal

A person on whom a compliance notice is served, may appeal that notice to the District Court. An appeal shall be made not later than seven days from the date on which the compliance notice was served, shall be in writing and shall state all of the grounds on which the appeal is made and provide all of the documents intended to be relied on to support those grounds.

The appeal shall also be addressed to the Commission which shall have a right to appear, be heard and adduce evidence on the hearing of the appeal. In determining an appeal, the District Court may confirm, vary or set aside the compliance notice. Where a compliance notice is set aside, the District Court may require a fresh investigation into the matter to be carried out by the Commission.

Directions

Where, during an electoral period, the chief executive is satisfied from information available to him or her that there is or has been a clear contravention of certain of the above offences, the chief executive may give a direction in writing to a person directing that person to do, or to refrain from doing, anything which the chief executive specifies in the direction to bring the contravention to an end.

The provision only applies during an electoral period and is without prejudice to the provisions on compliance notices. A direction shall take effect immediately upon service on the person to whom it is addressed and may, among other things, include a requirement to suspend an online political advertisement and its accompanying transparency notice from an online platform.

Subject to an appeal to the Board of the Commission, the chief executive may amend, extend or withdraw a direction without prejudice to the serving of another direction in the same matter or in a different matter as the circumstance may require.

Failure by a person to comply with a direction is an offence. Where a person does not comply with a direction, the chief executive may apply to the High Court for an order directing the person to comply with the direction. A person may appeal a direction to the Board of the Commission.

Appeal of Direction

A person, on whom a direction is served, may appeal that direction to the Board of the Commission. The making of an appeal shall not, pending the outcome of the appeal, affect the operation of the direction, unless the Board of the Commission otherwise directs. An appeal shall be made not later than three days from the date on which the compliance notice was served, shall be in writing to the chairperson of the Board and shall state all of the grounds on which the appeal is made and provide all of the documents intended to be relied on to support those grounds.

The Board shall determine an appeal without an oral hearing unless, having regard to the particular circumstances of the appeal, it considers that it is necessary to conduct an oral hearing in order to properly and fairly determine the appeal. The Board may make such rules and establish such procedures in relation to the conduct of appeals and oral hearings as it considers appropriate and shall publish those rules and procedures on its website.

In determining an appeal, the Board of the Commission may confirm, vary or cancel the direction. An appeal shall be heard by the Board of the Commission or by such specified member or members of the Board as may be appointed by the Board of the Commission.

Retention & Production of Documents

Online platforms and buyers of online political advertisements shall retain information, documents and records evidencing the procedures and measures applied, and the information and documents provided for the purposes of demonstrating compliance with the requirements for a period of 30 months from the date of the purchase of an online political advertisement.

All documents, information or records shall be retained in the State and may be kept wholly or partly in electronic, mechanical or other non-written form on the proviso that they are capable of being reproduced in a written form. The documents, information or records required to be retained shall be made available on request to the Commission, its chief executive, an authorised officer or a member of an Garda Síochána.

There is a wide range of powers to authorised officers to assist them in monitoring, investigating and taking appropriate action where contravention of the requirements of this Part has taken place or are taking place.

The Commission may, by way of a notice in writing, to obtain written information from online platforms and the buyers of online political advertising. Failure by an online platform or the buyer of an online political advertisement to comply with a written notice is an offence.

The Commission may require any person (other than an online platform or the buyer of an online political advertisement) who possesses information, documents or relevant things that are relevant to the performance by the Commission of its functions.

to provide such information, documents or relevant things to the Commission. In addition, the Commission may, where appropriate, require a person to attend before it for the purpose of the performance of its functions and a person shall co-operate with the Commission in this regard.

Offences

Electoral Reform Act 2022 provides for offences and penalties in relation to the provisions for online advertising. A person guilty of an offence shall be liable:

on summary conviction, to a class A fine or to imprisonment for a term not exceeding 12 months or to both, or

on conviction on indictment, to a fine or to imprisonment for a term not exceeding 5 years or to both.

Summary proceedings for an offence under this Part may be brought and prosecuted by the Commission, with the consent of the Director of Public Prosecutions, and may be instituted within 2 years from the date on which the offence was committed or alleged to have been committed.

An online platform may undertake any action or measure under the Electoral Reform Act 2022 through a third party although the online platform will remain liable for any failure by a third party to apply an action or measure or to comply with any requirement that falls within the responsibility of the online platform.

Notice

A notice or other document that is required to be served on or given to a person under this Part shall be addressed to the person concerned by name, and may be served on or given to the person in one of the following ways:

by sending it to the person by electronic means to an email address, fax number or other electronic contact point used by the person (provided that a record is made by the electronic system to confirm that the notice has been sent to the person);
by delivering it to the person;
by leaving it at the address at which the person ordinarily resides or carries on business or, in a case in which an address for service has been furnished, at that address; or
by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or carries on business.