Online Political Publicity

Table of Contents

ELECTORAL REFORM ACT 2022

PART 4

Regulation of online political advertising

Interpretation

119. (1) In this Part—

“authorised officer” shall be construed in accordance with section 128 ;

“Board” means the members of the Commission referred to in section 9 (1);

“buyer of online political advertisement” means a person who purchases an online political advertisement, or a person on whose behalf an online political advertisement is purchased, for placement, display, promotion or dissemination on an online platform, and unless the context otherwise requires includes a person acting for or on behalf of a buyer (or any intermediary however described);

“company” means a company formed and registered under the Act of 2014 or an existing company within the meaning of that Act;

“electoral period” means the period of time commencing on the day of the making of a polling day order and ending on polling day;

“look-alike targeting” means a targeting method involving the use of data from an existing online audience and which applies the use of data analysis techniques, tools or other methods to identify new persons who have similar characteristics or are engaged in similar activities on an online platform;

“Member State” means a Member State of the European Union;

“micro-targeting” means a targeting method involving the use of data analysis techniques, tools or other methods to address, transmit or communicate a tailored online political advertisement either to a specific person or group of persons or to increase the circulation, reach or visibility of an online political advertisement;

“online archive or library” shall be construed in accordance with section 121 (5);

“online platform” means any host, operator or provider of a website, web application, digital application or other seller of an online political advertisement accessible to the general public or a section of the public that—

(a) has not less than 100,000 unique monthly users in the State for a period of not less than 7 months during the 12 months immediately preceding the date of the making of a polling day order, and

(b) receives payment or payment in kind for the placement, display, promotion or dissemination of an online political advertisement on the provider’s website, web application or digital application;

“online political advertisement” means any form of communication in a digital format for political purposes purchased for placement, display, promotion or dissemination on an online platform during an electoral period and for which a payment or payment in kind is made to the online platform concerned;

“political purposes” shall have the meaning assigned to it by section 22 (2)(aa) of the Electoral Act 1997 ;

“polling day order” means an order made by the Minister appointing a day for the holding of a poll which—

(a) in the case of a Dáil election, is made under section 96(1) of the Act of 1992,

(b) in the case of a European election, is made under section 10(1) of the Act of 1997,

(d) in the case of a presidential election, is made under section 6(1)(c) of the Act of 1993,

(e) in the case of a referendum, is made under section 10 or section 12 of the Act of 1994, or

(f) in the case of a Seanad election, is made under section 12 of the Seanad Electoral (University Members) Act 1937 and under section 24 of the Seanad Electoral (Panel Members) Act 1947 ;

“regulated financial service provider” shall have the meaning assigned to it by section 2 (1) of the Central Bank Act 1942 ;

“seller of an online political advertisement” means a person who receives payment or payment in kind in return for the placement, display, promotion or dissemination of an online political advertisement;

“transparency notice” shall be construed in accordance with section 121 (2).

(2) For the purposes of this Part, a company shall be deemed to be resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be resident at its principal office or place of business.

Application of Part

120. This Part applies to the purchase for placement, display, promotion or dissemination, directly or indirectly including through an intermediary, of an online political advertisement during an electoral period.

Public information requirements for online political advertisements

121. (1) An online platform shall ensure that an online political advertisement shall—

(a) be labelled with the text “Political Advert” in a conspicuous position where the user will easily see it or be made aware of it, and

(b) include a button, icon, tab, hyperlink or other connection which shall connect the user of the online platform to a transparency notice which is clearly displayed on the online platform placing, displaying, promoting or disseminating that advertisement.

(2) A transparency notice shall be a notice that shall include but shall not be limited to—

(a) the name, postal address, telephone number, email address and, where applicable, the website address of the buyer of the online political advertisement and, where the buyer of the online political advertisement is not the person who has paid or will pay for the advertisement, shall include the same information with respect to the person who has paid or will pay for the advertisement,

(b) confirmation of whether micro-targeting was applied in the placement, display, promotion or dissemination of the online political advertisement and, if so, a description of the criteria or information, and the source of the information, used as the basis for any such micro-targeting and providing a link or connection to the online platform’s policy, if any, on micro-targeting,

(c) confirmation of whether the particular audience at whom the buyer of the online political advertisement intends the advertisement to be directed includes persons included on the basis of the application of look-alike targeting and, if so, a description of the characteristics of, or the activities engaged in by, the particular audience and the source of the information used to identify that particular audience and providing a link or connection to the online platform’s policy, if any, on look-alike targeting,

(d) the total amount paid or due to be paid for the online political advertisement which shall be the aggregate of the amounts paid or due to be paid for the production of the content of the advertisement by, for or on behalf of the buyer of the online political advertisement and for the placement, display, promotion or dissemination of the advertisement by the online platform,

(e) the number of days during which the online political advertisement will be placed, displayed, promoted or disseminated on the online platform and the date on which that advertisement will be placed, displayed, promoted or disseminated on that online platform and the date on which it will cease to appear on that online platform,

(f) the estimated size of the audience that the buyer of the online political advertisement intends the online political advertisement to reach,

(g) the number of times the online political advertisement has been viewed by users,

(h) an indication of the election or referendum to which the online political advertisement relates,

(i) a link or connection to the online archive or library established and maintained by the online platform under subsection (5), and

(j) information and contact details of the online platform where a person may notify the online platform that an online political advertisement may not or does not comply with this Part.

(3) The information specified in subsection (2) contained in a transparency notice shall be maintained and updated by the online platform in real time.

(4) A transparency notice displayed by an online platform in accordance with subsection (2) shall be notified by the online platform to the Commission as soon as may be after it has been displayed.

(5) (a) Subject to subsection (6), an online platform shall establish, maintain and update in real time an online archive or library comprising each online political advertisement purchased for placement, display, promotion or dissemination on that platform and its accompanying transparency notice.

(b) An online platform shall retain in the online archive or library each online political advertisement placed, displayed, promoted or disseminated on that platform and its accompanying transparency notice for a period of not less than 7 years after the end of the period on which the online political advertisement was placed, displayed, promoted or disseminated as provided for in subsection (2)(e).

(c) Where, during the period specified in paragraph (b), an online platform is acquired by or merges with another body corporate, the online platform or, as appropriate, any body corporate that is a successor to or a continuation of that online platform, shall comply with the requirements of paragraph (b).

(6) An online platform shall make available to the public on its platform the online archive or library established, maintained and updated by it in accordance with subsection (5).

(7) Where, during the period specified in subsection (5)(b), an online platform is to be wound up, dissolved, liquidated or otherwise cease trading, the online platform shall make arrangements with the Commission for the transfer to it of the online archive or library, and shall transfer the online archive or library to the Commission in accordance with those arrangements.

(8) An online platform which fails to comply with this section (other than subsection (7)) shall be guilty of an offence.

Obligations on online platforms regarding online political advertisements

122. (1) An online platform shall apply the measures required to verify the identity of the buyer of an online political advertisement and the information and documentation provided by such a buyer in accordance with section 123 .

(2) If for any reason the online platform considers that the information and documents provided to the online platform under section 123 are insufficient to verify the identity of the buyer of the online political advertisement, the online platform shall request and obtain such other information and documents from the buyer as are necessary and appropriate in order to verify the identity of the buyer.

(3) An online platform shall not place, display, promote or disseminate an online political advertisement on its platform where a buyer of an online political advertisement fails to provide all the information and documentation required to be provided by the buyer under subsection (1) and, where applicable subsection (2), for so long as the failure continues.

(4) An online platform shall, in accordance with section 136 , keep records of the measures applied and information, documents and records obtained by it to verify the identity and address of a buyer of an online political advertisement.

(5) An online platform which fails to comply with this section (other than subsection (2)) shall be guilty of an offence.

Identification and verification of buyers

123. (1) An online platform shall apply the measures specified in subsection (2) in relation to the buyer of an online political advertisement prior to the purchase for placement, display, promotion or dissemination in the State by the buyer of that advertisement.

(2) The measures that shall be applied by an online platform for the purposes of subsection (1) shall consist of the following:

(a) (i) ascertain and verify the identity of the buyer of an online political advertisement on the basis of official documents (whether or not in electronic form) issued by—

(I) a Department of State or other national authority of the State,

(II) the national governmental authorities of another state, or

(III) with respect to a European political party, the Authority for European Political Parties and European Political Foundations,

provided that there are reasonable grounds to be satisfied that the documents can be relied upon to confirm the identity of the buyer, and

(ii) ascertain and verify the address of the buyer of an online political advertisement on the basis of documents (whether or not in electronic form) or information including—

(I) the documents referred to in subparagraph (i), or

(II) documents from a regulated financial service provider or other utility or service provider,

confirming the address of the buyer (whether within the State or not) and that the buyer is a customer of that utility or service provider, provided that there are reasonable grounds to be satisfied that the documents or information can be relied upon to confirm the address of the buyer and that the buyer is resident in the State other than where section 125 (1) applies;

and

(b) obtain from the buyer of an online political advertisement a written statement verified by a statutory declaration as provided for in subsection (5).

(3) When applying the measures specified in subsection (2), an online platform shall take reasonable steps to verify that any person purporting to act for or on behalf of a buyer of an online political advertisement is acting with the approval and consent of the buyer.

(4) An online platform which is unable to apply the measures specified in subsection (2) in relation to a buyer of an online political advertisement as a result of any failure on the part of the buyer to provide the online platform with documents or information required under this section or section 122 (2), or both, shall not place, display, promote or disseminate any online political advertisement purchased by the buyer, or for or on behalf of the buyer, on the online platform where it can be accessed or seen by users of the online platform for so long as the failure remains unrectified.

(5) (a) For the purposes of subsection (2)(b), a buyer of an online political advertisement shall provide to the online platform a written statement, verified by a statutory declaration, that to the best of the knowledge and belief of the person concerned the statement is correct in every material respect and that the person has taken all reasonable action in order to be satisfied that the statement is accurate, confirming—

(i) (I) that the funds for the purchase of the online political advertisement for placement, display, promotion or dissemination in the State have been provided by the buyer, or

(II) if the funds have been or will be provided by a person other than the buyer, the identity of the person who has provided or will provide the funds for the purchase of the online political advertisement and that the person is not prohibited by law, including under this Part, from purchasing such an advertisement for placement, display, promotion or dissemination in the State,

and

(ii) (I) that the buyer of the online political advertisement is not controlled by any other person, company, body corporate or unincorporated body of persons, or

(II) if the buyer is so controlled, the name and address of the person exercising ultimate control over the buyer.

(b) The written statement and statutory declaration under this subsection shall, where the buyer is a company, a body corporate or an unincorporated body of persons, be made by one of the following persons:

(i) in the case of a company, by a director, secretary or other officer of the company;

(ii) in the case of a body corporate (other than a company) or an unincorporated body of persons, by any officer of the body or any person for the time being performing the functions of an officer of the body.

(6) (a) Subject to paragraph (b), where a buyer of an online political advertisement purchases more than one online political advertisement from an online platform in respect of the same election or referendum, as the case may be, it shall be sufficient for the purposes of compliance with subsections (2) and (5) by the online platform and the buyer respectively if the online platform applies the measures in subsection (2) to the buyer prior to the purchase of the first online political advertisement by that buyer.

(b) Paragraph (a) applies only where the buyer of the online political advertisement is the same buyer and the buyer confirms that there is no change—

(i) in the circumstances relating to that buyer in the period after the application of the measures in subsection (2),

(ii) in the information required to be provided by the buyer of the online political advertisement under sections 121 , 124 , 125 and this section and included in the online political advertisement and its accompanying transparency notice, and

(iii) in any material fact or circumstance in the period since the making by the buyer of the written statement verified by a statutory declaration under subsection (5) and that statement continues to be correct and accurate in every material respect.

(7) Where an online platform becomes or is made aware of information on which there are reasonable grounds to consider that a buyer of an online political advertisement or a person providing the funds to the buyer is prohibited by virtue of this Part from purchasing an online political advertisement for placement, display, promotion or dissemination in the State, the online platform shall examine the information and documents provided by the buyer prior to the purchase for placement, display, promotion or dissemination of the advertisement, and make such inquiries as are necessary to ascertain the accuracy of the information and veracity of the documents provided by the buyer.

(8) If there are reasonable grounds to conclude that the information or documents provided by the buyer under this section are inaccurate in a material particular, the online platform shall remove the advertisement from its platform immediately on forming that conclusion.

(9) An online platform which fails to comply with subsection (1), (4) or (8) shall be guilty of an offence.

(10) A person who makes a written statement and provides a statutory declaration pursuant to subsection (5) that he or she knows, or ought reasonably to know, is false or misleading in any material particular shall be guilty of an offence.

Obligations on buyers regarding online political advertisements

124. (1) The buyer of an online political advertisement shall provide such information and documents required under sections 121 , 122 , 123 and 125 to an online platform for the purposes of the purchase for placement, display, promotion or dissemination of an online political advertisement on an online platform.

(2) The buyer of an online political advertisement shall comply with any reasonable request by an online platform for such information and documents (including information and documents additional to those required under sections 121 , 122 , 123 and 125 ) as may be required by the online platform for the purpose of enabling it to comply with its obligations under those sections.

(3) The buyer of an online political advertisement shall provide to an online platform the information required under section 121 (2) (other than paragraphs (g), (i) and (j)) to be contained in a transparency notice prior to the placement, display, promotion or dissemination of an online political advertisement on that platform.

(4) The buyer of an online political advertisement shall provide such information as may be required in order to enable the online platform to comply with its obligations under section 121 (3) and shall, where the buyer wishes to extend the period during which the advertisement is placed, displayed, promoted or disseminated on that online platform, inform the online platform of that fact and provide up to date information to the online platform in relation to any matter required under section 121 to be included in the transparency notice.

(5) Notwithstanding subsections (2) and (3), a buyer of an online political advertisement may, at any time up to the placement, display, promotion or dissemination of an online political advertisement on an online platform, decide not to provide the information and documents required under sections 121 , 122 , 123 and 125 or any additional information and documents requested by the online platform under this section, and in that case, the buyer shall confirm that decision in writing to the online platform.

(6) A buyer who provides information or documents to an online platform pursuant to subsection (2), (3) or (4), that the buyer knows, or ought reasonably to know, is false or misleading in any material particular shall be guilty of an offence.

(7) In this Part, where a person is acting for or on behalf of a buyer of an online political advertisement any obligation imposed on the buyer shall be construed as an obligation on the person acting for or on behalf of the buyer, but the buyer remains liable—

(a) for any failure to comply with an obligation under this section by a person acting for or on behalf of the buyer, and

(b) for complying with any such obligation imposed on the buyer under this Part.

Online political advertisements commissioned from outside the State

125. (1) Notwithstanding section 123 , an online political advertisement shall not, directly or indirectly, be placed, displayed, promoted or disseminated in the State by a person resident at an address outside the State, unless the buyer of the online political advertisement—

(a) is a natural person and provides evidence that he or she is a citizen of Ireland,

(b) is a company, body corporate or an unincorporated body of persons, and the buyer provides evidence that it 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,

(c) is a natural person and provides evidence that he or she is a national of a Member State (other than the State) and the online political advertisement relates to an election to the European Parliament held in the State in accordance with the Act of 1997,

(d) is a company, body corporate or an unincorporated body of persons, and the buyer provides evidence that it is registered or incorporated in a Member State (other than the State) in accordance with the laws of that Member 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 held in the State in accordance with the Act of 1997, or

(e) 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 held in the State in accordance with the Act of 1997.

(2) Nothing in subsection (1) shall operate to prevent the buyer of an online political advertisement from purchasing an online political advertisement for placement, display, promotion or dissemination in the State if the buyer is a natural person and is resident at an address in the State.

(3) The purchase of an online political advertisement for placement, display, promotion or dissemination in the State by a buyer of an online political advertisement referred to in subsection (1)(b), shall be arranged through the buyer’s office in the State.

(4) For the purposes of this section, an online platform is deemed to know that a person referred to in subsection (1) is resident at an address outside the State if there are reasonable grounds for concluding that the online platform so knows on the basis of—

(a) information in the possession of the online platform (whether obtained under section 122 , 123 , 124 or otherwise),

(b) in a case where the online platform has contravened section 122 or 123 , information that would have been in the possession of the online platform if it had complied with that provision or those provisions, or

(5) Subject to subsection (1), a person resident outside the State shall not, directly or indirectly, purchase an online political advertisement for placement, display, promotion or dissemination in the State.

(6) An online platform which places, displays, promotes or disseminates an online political advertisement purchased by a person who is prohibited by this section from purchasing such an advertisement for placement, display, promotion or dissemination in the State shall be guilty of an offence.

Exemptions from public information requirements

126. (1) A notice placed or displayed on an online platform by the persons specified in subsection (2) for the purpose, and in the course, of performing their statutory functions under the enactments specified in subsection (3) shall not be construed as being an “online political advertisement” for the purposes of this Part.

(2) The following persons are specified for the purposes of subsection (1):

(a) the Minister;

(b) the Commission;

(d) the presidential returning officer and a local returning officer (within the meaning of sections 9 and 10, respectively, of the Act of 1993);

(e) the referendum returning officer and a local returning officer (within the meaning of sections 14 and 15, respectively, of the Act of 1994);

(f) the chief returning officer, a returning officer and a local returning officer (within the meaning of sections 15A, 16 and 17, respectively, of the Act of 1997);

(g) a returning officer (within the meaning of section 14 of the Seanad Electoral (University Members) Act 1937 );

(h) the Seanad returning officer (within the meaning of section 4 of the Seanad Electoral (Panel Members) Act 1947 );

(i) a returning officer (within the meaning of Article 4 of the Local Elections Regulations 1995);

(j) a local authority.

(3) The enactments specified for the purposes of subsections (1) and (2) are:

(a) the Electoral Acts 1992 to 2022;

(b) the European Parliament Elections Act 1992 to 2022;

(d) the Referendum Acts 1922 to 2022;

(e) the Seanad Electoral (Panel Members) Acts 1947 to 2018;

(f) the Seanad Electoral (University Members) Acts 1937 to 2015;

(g) the Local Elections Regulations 1995.

Functions of the Commission

127. (1) For the purposes of this Part, the Commission shall have the following functions:

(a) to monitor online political advertising and online political advertisements;

(b) to monitor online platforms with respect to their role in the placement, display, promotion or dissemination of online political advertisements;

(c) to monitor buyers of online political advertisements and the online political advertisements purchased by them for placement, display, promotion or dissemination on online platforms;

(d) to encourage compliance with this Part, which may include the publication of notices (which shall be in both the Irish and English languages) containing practical guidance as to how those provisions may be complied with;

(e) to carry out such investigations as it considers appropriate, on the basis of information obtained on its own initiative or having regard to information provided to it by any person, into any suspected breach of this Part that may be occurring or has occurred;

(f) to decide appeals from directions given by the chief executive under section 133 ;

(g) to enforce the relevant statutory provisions in this Part;

(h) to make such arrangements as may be necessary to arrange for the transfer to it of online archives or libraries of online platforms as provided for under section 121 and to maintain such online archives or libraries for a period after such transfer so that each online political advertisement and its accompanying transparency notice in an online archive or library transferred to the Commission shall be maintained for a period of 7 years in total from the date of its inclusion in that archive or library;

(i) to identify any trends in relation to contraventions or other matters that may be relevant to the Commission’s functions under this Part raised by investigations by the Commission or directions by the chief executive and prepare and publish, in both the Irish and English languages, reports on such trends;

(j) to prepare and publish, in both the Irish and English languages, such information in connection with online political advertising to the public as it considers appropriate;

(k) such other functions relating to paragraphs (a) to (j) as may be appropriate.

(2) The Commission, in performing any of its functions under this Part, may where it considers it appropriate and to the extent that it may be necessary, appoint authorised officers to assist the Commission in the performance of its functions.

(3) In performing its functions under this Part, 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.

(4) The Commission shall have all such powers as are necessary or expedient for, or incidental to, the performance of its functions under this Part and shall ensure that those functions are performed effectively and efficiently.

Appointment of authorised officers

128. (1) The Commission may at any time appoint in writing 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 by the Commission of any of its functions under this Part.

(2) An authorised officer shall, on his or her appointment, be furnished by the Commission with a warrant of his or her appointment, and shall, when exercising a power conferred by this Part, if requested by any person affected, produce the warrant of appointment to that person for inspection.

(3) The Commission may revoke in writing any appointment made by it under subsection (1), whether or not the appointment was for a fixed period.

(4) An appointment of an authorised officer under this section shall cease—

(a) if it is revoked in writing by the Commission,

(b) if it is for a fixed period, on the expiry of that period, or

(c) if the person appointed is a member of the staff of the Commission, when that person ceases to be a member of staff of the Commission.

(5) Where the Commission is satisfied that an authorised officer or other member of the staff of the Commission has discharged his or her duties in pursuance of the functions of the Commission under this Part in good faith, the Commission may, in the manner and to the extent and subject to the terms and conditions that the Commission may determine from time to time in consultation with the Minister, indemnify the authorised officer or other member of staff against all actions or claims however they arise in respect of the discharge by him or her of his or her duties.

(6) A person who falsely represents himself or herself to be an authorised officer shall be guilty of an offence.

(7) In this section, “suitably qualified person” means any person (other than a member of the staff of the Commission) who, in the opinion of the Commission, has the qualifications and experience or expertise necessary to exercise the powers conferred on an authorised officer under this Part.

Monitoring compliance for the purposes of this Part

129. (1) Without prejudice to section 133 , the Commission may, for the purpose of performing any of its functions under this Part, monitor or make arrangements with other suitable persons for the carrying out of monitoring on its behalf of, the placement, display, promotion or dissemination of online political advertisements and related matters on online platforms by buyers of online political advertisements and of compliance by online platforms and buyers of online political advertisements with their obligations under this Part.

(2) Without prejudice to section 16 , the Commission may engage any person to assist it in the performance of its functions under subsection (1) and, for that purpose, it may do any or all of the following:

(a) enter into a contract with any person on such terms and conditions and for such period as the Commission considers appropriate;

(b) pay out of the funds at its disposal, to any person referred to in paragraph (a), such fees (if any) or allowances for expenses (if any) incurred by the person as the Commission may determine.

(3) Any person may provide to the Commission information concerning any matter in respect of which the person has reason to believe that there may have been, or may be, a contravention of the requirements of this Part including in relation to—

(a) an online political advertisement placed, displayed, promoted or disseminated on an online platform and its accompanying transparency notice,

(b) an online archive or library established and maintained by an online platform under section 121 (5),

(c) an online platform with respect to the placement, display, promotion or dissemination by it of an online political advertisement, or

(d) a buyer of an online political advertisement with respect to an online political advertisement purchased by the buyer and which an online platform has placed, displayed, promoted or disseminated on its platform.

Investigations

130. (1) Where the Commission has reason to believe, whether on the basis of information obtained itself or provided to it by any person or otherwise, that there is, has or may have been a contravention of this Part, the Commission may examine or investigate,and may, for that purpose, authorise or direct any member of staff of the Commission (other than the chief executive when he or she is performing his or her functions under section 133 ) or appoint an authorised officer to examine or investigate, any suspected contravention.

(2) The Commission may make such inquiries as it considers appropriate or direct an authorised officer or a member of its staff (other than the chief executive when he or she is performing his or her functions under section 133 ) to make such inquiries, and the Commission, or an authorised officer or member of staff, may require any person to furnish without delay any information, document or relevant thing in the possession or procurement of that person which the Commission or an authorised officer or member of staff may require for the purposes of an investigation.

(3) (a) An authorised officer or member of staff shall carry out an investigation authorised under subsection (1) with all due expedition consistent with fairness and efficiency and may make such inquiries as he or she considers appropriate.

(b) Where the person carrying out the investigation under this section is an authorised officer he or she may, for the purposes of making any inquiries as in his or her opinion may be required, use any one or more of his or her powers under section 137 .

(4) Following the carrying out of the investigation, an authorised officer or member of staff of the Commission shall prepare a draft report of the findings of his or her investigation under subsection (3) including whether, in his or her opinion, there are reasonable grounds for believing that a contravention has or has not occurred and the reasons for his or her findings and opinion.

(5) The authorised officer or member of staff of the Commission shall provide his or her draft report to any person who, in the opinion of the authorised officer or member of staff, may be contravening or has contravened his or her obligations under this Part, and shall invite the person to make submissions in writing within the period specified by the authorised officer or member of staff in relation to his or her opinion and the draft report.

(6) The authorised officer or member of staff of the Commission shall consider any submissions made to him or her under subsection (5) and, if he or she considers it appropriate, shall revise his or her draft report on foot of any such submissions, and shall include in the report prepared by him or her a summary of the submissions (if any) received by him or her.

(7) The authorised officer or member of staff of the Commission shall, having considered any submissions made to him or her under subsection (5), prepare a report and shall—

(a) set out whether or not in his or her opinion the person is contravening or has contravened this Part,

(b) if he or she considers that the person is contravening or has contravened this Part, make any recommendation as he or she considers appropriate as to what action, if any, the Commission may take in respect of any such contravention, and

(8) The Commission shall consider the report, any submissions made and any recommendations by the authorised officer or member of staff of the Commission presented to it under subsection (7).

(9) The Commission may, as it considers appropriate, invite any person who, in the opinion of the authorised officer or member of staff of the Commission, there are reasonable grounds for believing may be contravening, may have contravened or has contravened his or her obligations under this Part to make further submissions in writing to the Commission within the period specified by it in relation to the opinion of, and the report presented to the Commission under subsection (7) by, the authorised officer or member of staff.

(10) Following consideration of the report and any recommendations made by the authorised officer or member of staff of the Commission under subsection (7), and any further submissions under subsection (9), the Commission may—

(a) take no further action,

(b) if it is satisfied that a contravention is taking or has taken place, issue a compliance notice under section 131 with respect to any person whom the Commission considers is contravening or has contravened the requirements of this Part,

(d) if it is satisfied that a contravention is taking or has taken place, bring a prosecution in respect of any offence that may have been committed in accordance with section 140 (4).

(11) Nothing in this Act shall operate to prevent the Commission exercising any of its powers under this Part as it considers appropriate either during or outside an electoral period.

(12) For the purposes of this Part, the Commission may give such directives to an authorised officer or member of its staff (other than the chief executive when he or she is performing his or her functions under section 133 ) as it considers appropriate in the circumstances.

(13) Nothing in this section shall affect the exercise by an authorised officer of any power which, apart from this section, he or she could exercise by virtue of section 137 , either during or outside an electoral period in connection with the placement, display, promotion or dissemination of an online political advertisement in the State.

Compliance notice

131. (1) Where the Commission is satisfied, following receipt of a report under section 130 , that there is or has been a contravention by a person of the obligations under this Part, the Commission may serve a notice in writing (in this Part referred to as a “compliance notice”) on the person.

(2) A compliance notice shall—

(a) state the reasons for the Commission being satisfied that there is or has been a contravention referred to in subsection (1),

(b) identify any provision of this Part with respect to which the Commission is satisfied that there is or has been a contravention,

(c) direct the person to take such action as is necessary to bring the contravention to an end or to otherwise remedy the contravention in any other manner as the Commission may specify,

(d) specify the date by which the person is to comply with the compliance notice,

(e) specify the date and time by which the person to whom a compliance notice is addressed shall confirm to the Commission that the notice has been complied with,

(f) state that the person may appeal the compliance notice to the District Court under section 132 and include information specifying—

(i) the form and manner of such an appeal, and

(ii) the service address of the Commission for the purposes of notifying the Commission of the making of the appeal under section 132 ,

(g) state that, if an appeal is not made in accordance with section 132 and within the period specified in that section, then—

(i) the compliance notice will be treated as not disputed, and

(ii) the person will be deemed to have accepted the compliance notice and have agreed to comply with it,

and

(h) state that if the person to whom the compliance notice is given fails to comply with the notice the person shall be guilty of an offence.

(3) The date specified under subsection (2)(d) shall not be earlier than the end of the period within which an appeal may be made under section 132 .

(4) The Commission may—

(a) other than where an appeal has been made to the District Court under section 132 (1), amend the compliance notice,

(b) withdraw the notice at any time, or

(c) if no appeal is made or pending under section 132 (1), extend the date specified in the notice under subsection (2)(d).

(5) Withdrawal by the Commission of a compliance notice under subsection (4)(b) does not prevent the Commission serving another compliance notice on the person, whether in respect of the same matter or a different matter, as circumstances may require.

(6) The Commission may, notwithstanding that the judge of the District Court has not made any direction under section 132 (6), conduct a fresh investigation under section 130 into a matter the subject of a previous compliance notice (and the provisions of section 130 and this section shall apply to any such investigation).

(7) A person to whom a compliance notice has been given who fails to comply with, or causes or permits another person to fail to comply with, the notice shall be guilty of an offence.

(8) Where in the opinion of the Commission, a person to whom a compliance notice was served is failing or has failed to comply with the notice by or on the day specified in the notice or, where an appeal was made under section 132 (1), on the day after the day on which the notice is confirmed or varied on appeal, the Commission may apply to a judge of the District Court in the district court district in which the notice was served or the appeal was heard and determined for an order directing the person to comply with the notice, or the notice as so varied, and the Court may, as it thinks fit, on the hearing of the application, make or refuse to make such an order.

Appeal to District Court from compliance notice

132. (1) An appeal may be made to a judge of the District Court in the district court district in which the compliance notice under section 131 was served on a person by the Commission under section 131 (1) not later than 7 days from the date on which the compliance notice was served.

(2) An appeal under subsection (1)—

(a) shall be in writing,

(b) shall, subject to subsection (3), 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, and

(c) shall, as soon as may be after it is made to the District Court, be addressed to and be delivered or sent so as to reach the Commission within the period specified in subsection (1).

(3) An appeal shall be made on one or more of the following grounds only:

(a) that the Commission in making its decision committed a serious and significant error of law or fact, or a series of minor errors of law or fact which when taken together amount to a serious and significant error;

(b) that the Commission did not comply with fair procedures in making its decision.

(4) The Commission shall be entitled to appear, be heard and adduce evidence on the hearing of the appeal.

(5) In determining an appeal of a compliance notice under this section, the judge may—

(a) confirm the notice,

(b) vary the notice on such terms as he or she considers appropriate, or

(6) Where the judge of the District Court sets aside the compliance notice under subsection (5)(c) he or she may, as the Court considers appropriate, direct the Commission to—

(a) conduct a fresh investigation under section 130 into the matter (and the provisions of this section shall apply to such an investigation), or

(b) publish in a specified manner notice of the decision of the Court.

(7) If, on appeal, the compliance notice is not set aside, the notice takes effect on the later of the following:

(a) the day after the day on which the notice is confirmed or varied on appeal;

(b) if the appeal is withdrawn by the appellant, the day after the day it is withdrawn;

(8) If there is no appeal under subsection (1), the compliance notice takes effect on the day specified in the notice.

(9) If there is no appeal under subsection (1), or if the compliance notice is confirmed or varied on appeal, the Commission may publish, in such manner as it thinks fit, notice of the issuing of the compliance notice or the notice as so varied by the Court under subsection (5)(b), to the person including the giving of any advice on the conduct of the person which is giving rise or has given rise to the contravention.

(10) There shall be no appeal to the Circuit Court from a decision of the District Court under this section.

Directions

133. (1) (a) Without prejudice to section 131 , where, during an electoral period, the chief executive is satisfied from information available to him or her, whether obtained through monitoring of online political advertisements by the Commission, referral to him or her by the Board, information provided by any person or otherwise, that there is or has been a clear contravention of sections 121 , 122 , 123 , 124 or 125 the chief executive may give a direction in writing (in this Part referred to as a “direction”) to an online platform or buyer of an online political advertisement, or both, that he or she is so satisfied that such a contravention is taking or has taken place and to do or to refrain from doing anything which the chief executive specifies in the direction and to bring the contravention to an end.

(b) A direction shall take effect immediately upon service on the online platform or buyer of an online political advertisement, or both, to whom it is addressed and shall, other than where subsection (2)(h) or subsection (6), (7) or (8) of section 134 apply, continue in effect until the end of the electoral period.

(2) A direction referred to in subsection (1) shall—

(a) state the reasons for the chief executive being satisfied that there is or has been a contravention of a provision of sections 121 , 122 , 123 , 124 or 125 ,

(b) identify the provision of this Part with respect to which the chief executive is satisfied that there is or has been a contravention,

(c) specify the action which the online platform, the buyer of the online political advertisement, or both, shall take with respect to the online political advertisement and its accompanying transparency notice, as the case may require, to remedy the contravention,

(d) specify any action which the online platform, the buyer of the online political advertisement, or both, shall refrain from taking with respect to the online political advertisement and its accompanying transparency notice, as the case may require,

(e) specify any information required under the direction to be given to the chief executive by the online platform, the buyer of the online political advertisement, or both, in respect of any matter specified in the direction,

(f) specify the date and time by which the online platform or buyer of an online political advertisement, or both, to whom a direction is addressed is to comply with the direction,

(g) specify the date and time by which the online platform or buyer of an online political advertisement, or both, to whom a direction is addressed shall confirm to the chief executive that the direction has been complied with,

(h) state that the online platform or buyer of an online political advertisement, or both, to whom a direction is addressed may appeal the direction in writing to the Board under section 134 (1) within the period specified in that subsection, and include information specifying—

(i) the form and manner of such an appeal, and

(ii) the service address of the Board for the purposes of making the appeal under section 134 (1),

(i) state that, if an appeal is not made in accordance with section 134 and within the period specified in that section, then—

(i) the direction will be treated as not disputed, and

(ii) the online platform or buyer of an online political advertisement, or both, will be deemed to have accepted the direction and has or have agreed to comply with it,

and

(j) state that if the online platform or buyer of an online political advertisement, or both, to whom the direction is given fails to comply with the direction he, she or it shall be guilty of an offence.

(3) The action specified as being required under subsection (2)(c) may include a requirement to suspend the online political advertisement and its accompanying transparency notice on the online platform from where it can be accessed or seen by users of the platform until the contravention is brought to an end or otherwise remedied in accordance with the direction.

(4) The chief executive may request in writing information from any person within the period specified in the request as he or she may reasonably require for the purposes of the performance of his or her functions under subsection (1).

(5) The chief executive may amend (including to extend the date and time specified in subsection (2)(f) and (g)) or withdraw any direction given by him or her under this section, other than where—

(a) an appeal has been made to the Board under section 134 (1),

(b) an order has been made by the High Court in relation to the direction under subsection (8) or (9),

(c) on appeal to it under section 134 (1), the Board has made a determination under section 134 (7) varying or cancelling the direction, or

(d) on an appeal to it under section 134 (1), the determination of the Board under section 134 (7) confirming or varying the direction is the subject of an application for leave to apply for judicial review or an application for such judicial review.

(6) Withdrawal by the chief executive of a direction under subsection (5) does not prevent the chief executive giving another direction to the online platform or the buyer of an online political advertisement, or both, whether in respect of the same matter or a different matter, as circumstances may require.

(7) An online platform or a buyer of an online political advertisement, or both, to whom a direction has been given by the chief executive who fails to comply with, or causes or permits another person to fail to comply with, the direction shall be guilty of an offence.

(8) Where, in the opinion of the chief executive, an online platform or buyer of an online political advertisement to whom a direction was given is failing or has failed to comply with the direction by or on the date and time specified in the direction or, where an appeal was made under section 134 (1) and the direction was varied by the Board on appeal, the direction as so varied, the chief executive may, by motion, apply to the High Court for an order directing the online platform or buyer of an online political advertisement, or both, to comply with the direction, or the direction as so varied, and the Court may, as it thinks fit, on the hearing of the application, make or refuse to make such an order or make such order including an order varying the direction as it considers appropriate in the circumstances.

(9) (a) The High Court, when considering the application under subsection (8), may make such interim or interlocutory order (if any) as it considers appropriate.

(b) The order of the High Court determining the application under subsection (8) may contain such terms and conditions (if any) as to the payment of costs as the Court considers appropriate.

(10) Nothing in this section shall operate to prevent the Commission (including the Board) providing information to the chief executive for the purpose of the performance by him or her of his or her functions under this section.

Appeal to Board from direction

134. (1)(a) An appeal may be made to the Board in respect of a direction given by the chief executive under section 133 (1) not later than 3 days from the date on which the direction was served, but the making of an appeal shall not, pending the outcome of the appeal, affect the operation of the direction, unless the Board otherwise directs.

(b) An appeal under paragraph (a) may be made by—

(i) the online platform, or

(ii) where the direction materially affects the placement, display, promotion or dissemination of an online political advertisement on the online platform, the buyer of the online political advertisement concerned.

(i) an online platform as provided for by paragraph (b)(i), the buyer of the online political advertisement shall be entitled to make submissions to, and if an oral hearing is conducted, to be heard by, the Board in relation to the matters the subject of the appeal, or

(ii) a buyer of an online political advertisement as provided for by paragraph (b)(ii), the online platform on which the online political advertisement concerned is placed, displayed, promoted or disseminated shall be entitled to make submissions to, and if an oral hearing is conducted, to be heard by, the Board in relation to the matters the subject of the appeal.

(2) An appeal under subsection (1)—

(a) shall be in writing,

(b) shall state all of the grounds on which the appeal is made and provide to the Board all of the documents and evidence intended to be relied on to support those grounds, and

(c) shall be addressed to the chairperson of the Board and be delivered or sent so as to reach the chairperson within the period specified in subsection (1).

(3) 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.

(4) 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 a website maintained by or on behalf of the Commission.

(5) The chairperson of the Board shall have discretion as to the conduct of an oral hearing under this section and shall conduct the hearing or ensure that the hearing is conducted expeditiously and without undue formality.

(6) The Board, in determining an appeal under this section—

(a) shall consider the grounds for the appeal stated pursuant to subsection (2)(b),

(b) shall consider the online political advertisement or its accompanying transparency notice, or both, and any such other information in connection with the online political advertisement or its accompanying transparency notice as, in the opinion of the Board, may be relevant to its determination, and

(c) may, where it considers it necessary or expedient for the fair and proper determination of the appeal, have regard to such submissions, documents or evidence not contained in the direction as the Board considers appropriate.

(7) In determining an appeal under this section, the Board may, if satisfied that it is reasonable to do so—

(a) confirm the direction,

(b) vary the direction on such terms as it considers appropriate, or

(8) If, on appeal, the Board varies the direction, the direction as so varied takes effect immediately on the determination of the appeal.

(9) The Board may, for the purpose of ensuring the efficient, fair and timely determination of an appeal, specify procedures in respect of the conduct of the appeal.

(10) The Board may request in writing information from any person within the period specified in the request as it may reasonably require for the purposes of the performance of its functions under this section.

(11) An appeal under this section shall be heard by the Board or by such specified member or members of the Board as may be appointed by the Board to hear the appeal.

(12) An appeal under this section shall be heard and determined as soon as is practicable.

(13) Nothing in this section shall operate to prevent the Board providing information to the chief executive for the purpose of the performance by him or her of his or her functions under section 133 .

Judicial review

135. Nothing in this Part shall be construed as limiting the entitlement of a person affected by a decision of the Commission to apply to the High Court to seek relief by way of an application for judicial review.

Requirement on online platform and buyer of online political advertisement to retain records, information and documentation

136. (1) An online platform shall retain information, documents and records evidencing the procedures and measures applied, and the information and documents obtained, by it for the purposes of demonstrating compliance with subsections (2) and (5) of section 121 , subsections (1) and (2) of section 122 , subsections (1), (2), (3), (5) and (7) of section 123 and subsections (1) and (4)(a) of section 125 for a period of 30 months after the date on which a buyer of an online political advertisement purchased an online political advertisement for placement, display, promotion or dissemination on the platform or the date on which the online platform removed from its platform an online political advertisement placed, displayed, promoted or disseminated on the platform by the buyer, whichever is the later.

(2) Without prejudice to the generality of subsection (1), an online platform shall—

(a) take and retain the original or a copy of all documents, information or records provided by a buyer of an online political advertisement to the online platform and used by it to verify the identity and address of the buyer, and

(b) retain documents and records generated by the online platform in relation to the purchase of an online political advertisement and its placement, display, promotion or dissemination on the platform by a buyer of an online political advertisement.

(3) A buyer of an online political advertisement shall retain information, documents and records evidencing the information and documents provided by him, her or it for the purposes of demonstrating compliance with section 121 (2), subsections (1) and (2) of section 122 , subsection (2), (3), (5) and (7) of section 124 and section 125 (1) for a period of 30 months after the date on which the buyer of the online political advertisement purchased the online political advertisement for placement, display, promotion or dissemination on an online platform or the date on which the online platform removed from its platform the online political advertisement placed, displayed, promoted or disseminated on the platform by the buyer, whichever is the later.

(4) Without prejudice to the generality of subsection (3), a buyer of an online political advertisement shall—

(a) retain the original or a copy of all documents, information or records provided by the buyer to the online platform to verify the buyer’s identity and address, and

(b) retain documents and records generated by the buyer in relation to the purchase of an online political advertisement and its placement, display, promotion or dissemination on the online platform by the buyer.

(5) An online platform or a buyer of an online political advertisement may retain the documents, information or records wholly or partly in electronic, mechanical or other non-written form only if they are capable of being reproduced in a written form.

(6) The documents, information or records required to be retained by an online platform or a buyer of an online political advertisement shall be retained in the State and shall be made available on request, to—

(a) the Commission,

(b) the chief executive,

(d) a member of the Garda Síochána.

(7) The requirements imposed by this section are in addition to and not in substitution for any other requirements imposed by any other enactment or rule of law with respect to the keeping and retention of documents, information or records by an online platform or a buyer of an online political advertisement.

(8) The obligations imposed on an online platform or buyer of an online political advertisement under this section shall continue to apply to the online platform and the buyer of an online political advertisement notwithstanding that the online platform has ceased the placement, display, promotion or dissemination of an online political advertisement on its platform or has removed an online political advertisement from its platform.

(9) A requirement for an online platform or buyer of an online political advertisement that is a body corporate to retain any documents, information or records under this section extends to any body corporate that is a successor to, or continuation of, the body corporate.

(10) An online platform or a buyer of an online political advertisement who or which fails to comply with this section shall be guilty of an offence.

Powers of authorised officers

137. (1) For the purposes of this Part and ensuring compliance with its provisions, an authorised officer may—

(a) subject to subsection (3) enter (if necessary by the use of reasonable force) or, where the premises is a vehicle, stop and enter (if necessary by the use of reasonable force) at all reasonable times any premises—

(i) that he or she has reasonable grounds for believing has been or is being used in connection with the placement, display, promotion or dissemination of an online political advertisement, and

(ii) at which he or she has reasonable grounds for believing that information, documentation, books, records or relevant things in connection with the placement, display, promotion or dissemination of an online political advertisement are kept,

and search and inspect the premises and any information, documentation, books, records or relevant things at that premises,

(b) secure for later inspection any premises or any part of any premises which is being used in connection with the placement, display, promotion or dissemination of an online political advertisement, or where such information, documentation, books, records or relevant things are kept or there are reasonable grounds for believing that such information, documentation, books, records or relevant things are kept, for such period as may reasonably be necessary for the purposes of his or her functions under this Part,

(c) require any person employed in connection with the placement, display, promotion or dissemination of an online political advertisement to produce to the authorised officer such information, documentation, books or records and where such information, documentation, books or records are kept in non-legible form to reproduce in a legible form and to give him or her any information as the officer may reasonably require in relation to such information, documentation, books or records,

(d) inspect and take copies of, or extracts from, any such information, documentation, books, records or relevant things at the premises in connection with the placement, display, promotion or dissemination of an online political advertisement, including in the case of information in non-legible form, copies of or extracts from such information in a permanent legible form or require that such a copy be provided,

(e) make a record whether in writing, by photography or otherwise of any information, documentation, books, records or relevant things at the premises in connection with the placement, display, promotion or dissemination of an online political advertisement,

(f) remove and retain such information, documentation, books, records or relevant things in connection with the placement, display, promotion or dissemination of an online political advertisement for such periods as he or she reasonably considers to be necessary for the purposes of his or her functions under this Part,

(g) require any such person to give to the authorised officer any information which the authorised officer may reasonably require in connection with the placement, display, promotion or dissemination of an online political advertisement,

(h) require any such person to give to the authorised officer any other assistance or information which the authorised officer may reasonably require in connection with the placement, display, promotion or dissemination of an online political advertisement,

(i) require any person by or on whose behalf data equipment is or has been used or any person having charge of, or otherwise concerned with the operation of, the data equipment or any associated apparatus or material, to afford the authorised officer all reasonable assistance in relation to it and assist in the retrieval of information connected with the operation of such data equipment, apparatus or material,

(j) summon, at any reasonable time, any other person employed in connection with the placement, display, promotion or dissemination of an online political advertisement to give the authorised officer any information which the authorised officer may reasonably require and to produce to the authorised officer any records which are in the power, possession or control of that other person,

(k) carry out, or arrange to have carried out, inspections and such checks of the premises or relevant things on the premises as he or she reasonably considers to be necessary for the purposes of his or her functions under this Part,

(l) pay or make tender of payment for the purchase of an online political advertisement, or confirm, by such other manner as he or she considers appropriate, that the requirements of this Part are being complied with,

(m) require a person, who makes available facilities such as post office boxes, telecommunications or electronic mail addresses or other like facilities, to give him or her such assistance and information as he or she reasonably considers to be necessary for the purposes of his or her functions under this Part in any case where the officer has reasonable grounds for believing that an online political advertisement is being commissioned by mail or other means of delivery,

(n) at the direction of the Commission, serve compliance notices, and

(o) take possession of and remove from the premises for examination and analysis any relevant things in connection with the placement, display, promotion or dissemination of an online political advertisement, and detain them for such period as he or she reasonably considers to be necessary for the purposes of his or her functions under this Part.

(2) When performing a function under this Part, an authorised officer may, subject to any warrant under subsection (5), be accompanied by such number of authorised officers or members of the Garda Síochána as he or she considers appropriate.

(3) An authorised officer shall not enter a dwelling, other than—

(a) with the consent of the occupier, or

(b) pursuant to a warrant under subsection (5).

(4) Where an authorised officer is, in the exercise of his or her powers under this section, prevented from entering any premises an application may be made under subsection (5) authorising such entry.

(5) Without prejudice to the powers conferred on an authorised officer under this section, where a judge of the District Court is satisfied on the sworn information of an authorised officer that there are reasonable grounds to suspect that—

(a) there is information required by an authorised officer for the purposes of his or her functions under this Part on or at any, or any part of any dwelling,

(b) information, documentation (including documentation stored in non-legible form), books, records or relevant things referred to in subsection (1)(a) are being stored or kept in any dwelling, or

(c) a dwelling is occupied in whole or in part by an undertaking engaged in association with any trade, business or activity connected with the placement, display, promotion or dissemination of an online political advertisement,

the judge may issue a warrant authorising an authorised officer (accompanied, where appropriate, by such other authorised officers or members of the Garda Síochána or both as may be necessary) at any time or times within one month of the date of issue of the warrant, on production if so requested of the warrant, to enter the premises or dwelling as the case may be, using reasonable force where necessary, and exercise all or any of the powers conferred on an authorised officer under this section.

(6) A person who—

(a) obstructs or interferes with an authorised officer or a member of the Garda Síochána in the course of exercising a power under this section,

(b) fails or refuses to comply with a requirement of an authorised officer or a member of the Garda Síochána under this section,

(d) in purported compliance with a compliance notice gives information that is false or misleading in a material respect, or

(e) fails or refuses to comply with a requirement of an authorised officer under subsection (7),

shall be guilty of an offence.

(7) Where an authorised officer, upon reasonable grounds, believes that a person has committed an offence under this Part, he or she may require that person to provide him or her with his or her name and the address at which he or she ordinarily resides and, if the authorised officer considers it necessary, to produce corroborative evidence of his or her name and address.

(8) A statement or admission made by a person pursuant to a requirement under subsection (1) shall not be admissible as evidence in proceedings brought against the person for an offence under this Act (other than an offence under paragraph (a), (b), (c) or (d) of subsection (6)).

(9) The powers of an authorised officer conferred on him or her by or under this section shall apply, in like manner and with all necessary modifications, to the Commission.

(10) In this section—

“data equipment” means any electronic, photographic, magnetic, optical or other equipment for processing data;

“record” includes, in addition to a record in writing—

(a) a disc, tape, sound-track or other device in which information, sounds or signals are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in legible or audible form,

(b) a film, tape or other device in which visual images are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in visual form, and

and any reference to a copy of a record includes—

(i) in the case of a record to which paragraph (a) applies, a transcript of the sounds or signals embodied therein,

(ii) in the case of a record to which paragraph (b) applies, a still reproduction of the images embodied therein, and

(iii) in the case of a record to which paragraph (a) and (b) apply, such a transcript together with such a still reproduction.

Power of Commission to obtain information from online platform and buyer of online political advertisement

138. (1) The Commission may at any time, by notice in writing, require an online platform or a buyer of an online political advertisement to provide it with such written information which the Commission shall specify in the notice as it considers necessary to enable it to carry out its functions under this Part.

(2) An online platform or a buyer of an online political advertisement shall be guilty of an offence if he or she or it—

(a) fails to comply with a requirement made under subsection (1) within the period specified in the notice or within such extended period as the Commission allows, or

(b) in purporting to comply with such a requirement, provides to the Commission information that the online platform or buyer knows to be false or misleading.

(3) In proceedings for an offence under subsection (2)(a), it is a defence if the online platform or buyer of an online political advertisement establishes—

(a) that he or she or it did not know and could not be reasonably expected to know or ascertain the required information, or

(b) that the disclosure of the information was prohibited by a law of the State.

(4) If, after being convicted of an offence under this section, an online platform or a buyer of an online political advertisement continues to fail to comply with the requirement made under subsection (1), the online platform or the buyer commits a further offence on each day or part of a day during which the failure continues.

Power of Commission to request information from other persons

139. (1) The Commission may require any person (other than an online platform or a buyer of an online political advertisement) who possesses information or possesses or controls a document or relevant thing that is relevant to the performance by the Commission of any of its functions under this Part to provide the information, document or thing to the Commission and, where appropriate, may require the person to attend before it for the purpose of the performance by the Commission of any of those functions.

(2) A person referred to in subsection (1) shall co-operate with the Commission in its performance of its functions and answer fully and truthfully any question put to him or her by it.

(3) Where a person fails to comply with a requirement made under subsection (1), the Commission may apply to the High Court, on notice to the person, and the High Court may—

(a) order the person to comply with the requirement, and

(b) include in the order any other provision it considers necessary to enable the order to have full effect.

(4) If the person fails to comply with an order of the High Court under subsection (3), the Court may treat the failure for all purposes as if it were a contempt of the Court.

(5) Any information, document or relevant thing provided by a person in accordance with a requirement made under subsection (1) shall not be admissible in any criminal proceedings against the person, and this shall be explained to the person in ordinary language by the Commission.

(6) The power under subsection (1) is in addition to any other power conferred on the Commission, the chief executive, an authorised officer or member of staff of the Commission by this Part.

Offences and penalties

140. (1) A person guilty of an offence under this Part shall be liable—

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

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

(2) Where a conviction under subsection (1) relates to a further offence under section 138 (4), the person convicted shall be liable to a further penalty of €100 for each day or part of a day on which that further offence is committed.

(3) In proceedings for an offence under this Part, it shall be a defence for the accused to prove that the accused exercised due diligence and took all reasonable precautions to avoid commission of the offence.

(4) Subject to subsection (5), summary proceedings for an offence under this Part may be brought and prosecuted by the Commission.

(5) Proceedings for an offence under this Part shall not be instituted except by or with the consent of the Director of Public Prosecutions.

(6) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act 1851 , summary proceedings for an offence under this Part may be instituted within 2 years from the date on which the offence was committed or alleged to have been committed.

(7) Where an offence under this Part is committed by a body corporate and is proved to have been so committed with the consent or connivance of, or to be attributable to any wilful neglect on the part of, any person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(8) Where the affairs of a body corporate are managed by its members, subsection (7) applies in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.

(9) (a) Where a person is convicted of an offence under this Part, the court may, where it is satisfied that there are good reasons for so doing, order the person to pay to the prosecution the costs and expenses, measured by the court, incurred by the prosecutor in relation to the investigation, detection and prosecution of the offence, including the costs and expenses of and incidental to an examination of any information provided to the Commission or an authorised officer.

(b) An order for costs and expenses referred to in paragraph (a) shall be in addition to and not instead of any fine or penalty the court may impose.

Online platform liable for acts of third parties engaged by it to carry out its obligations under this Part

141. An online platform may either itself or by means of another service provider or agent engaged by the online platform for that purpose apply a measure or undertake any action required under this Part provided that the online platform remains liable—

(a) for any failure to apply the measure or comply with any requirement, and

(b) for complying with any obligation imposed on the online platform under this Part.

Service of documents

142. 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 so served on or given to the person in one of the following ways:

(a) by sending it to the person by electronic means to an email address, fax number or other electronic contact point used by the person for receiving emails, faxes or other electronic messages and a record that the email, fax or other electronic message has been sent to the person is made for the sender by the email system, fax machine or other electronic system used;

(b) by delivering it to the person;

(c) 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;

(d) by sending it by post in a prepaid registered letter or by any other form of recorded delivery service to the address referred to in paragraph (c).

Review of Part 4

143. (1) The Commission shall commence a review of the operation of this Part not later than 3 years after the coming into operation of this section.

(2) The Commission shall, not later than 12 months after the commencement of a review under subsection (1), submit a report to the Minister of the findings of a review under subsection (1).

(3) A report under subsection (2) may include such recommendations as the Commission considers appropriate to maintain or enhance the operation of this Part.

PART 5

Regulation of electoral process information, online electoral information and manipulative or inauthentic behaviour

Chapter 1

Preliminary

Definitions (Part 5)

144. In this Part—

“authorised officer” shall be construed in accordance with section 128 ;

“bot” means an automated online account, software programme or process where all or substantially all of the actions or posts of the account, programme or process are not the result of a person;

“disinformation”, for the purposes of this Act, means any false or misleading online electoral information that—

(a) may cause public harm, and

(b) by reason of the nature and character of its content, context or any other relevant circumstance gives rise to the inference that it was created or disseminated in order to deceive;

“election campaign period” means—

(a) such period (including an electoral period) as may be prescribed by the Commission, by order, from time to time and in relation to any election or referendum, commencing on a date before an impending election or referendum and ending on polling day at the time at which the polls close, which dates shall be set out in a notice published by the Commission, in such manner as it thinks fit, not less than 7 days before the earlier date,

(b) the period commencing 3 months prior to the latest date when an election is required by law to be held and ending when the electoral period ends, or

“electoral period” means the period of time commencing on the day of the making of a polling day order and ending on polling day;

“look-alike targeting” means the use of data from an existing online audience to identify other persons who have similar characteristics or are engaged in similar activities on an online platform;

“manipulative or inauthentic behaviour” means tactics, techniques and procedures that—

(a) constitute the 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,

(b) are likely to influence the information visible to other users of that platform,

(c) by reason of their nature and character, context or any other relevant circumstance, give rise to the inference that they are intended to result in the dissemination, publication or increased circulation of false or misleading online electoral information, and

(d) may cause public harm.

“misinformation”, for the purposes of this Act, means any false or misleading online electoral process information that may cause public harm, whether or not the information was created or disseminated with knowledge of its falsity or misleading nature or with any intention to cause such harm;

“online electoral information” means—

(a) any online electoral process information, or

(b) any online content relating to—

(i) a candidate in an election,

(ii) a political party that has candidates standing in an election,

(iii) issues that are of relevance to an election, or

(iv) issues that are of relevance to a referendum;

“online electoral process information” means online content of a factual nature relating to the holding of an election or referendum including but not limited to the registration of voters or candidates, voting times and locations, arrangements for postal voting, the secrecy of the ballot, the counting of votes and any other factual content relating to the holding of a particular election or referendum or to elections or referendums more generally;

“online platform” means any host, operator or provider of a website, web application or digital application accessible to the general public or a section of the public where the website, web application or digital application—

(a) has at least 100,000 unique monthly users in the State for a period of not less than 7 months during the 12 months immediately preceding the date of the making of a polling day order, and

(b) displays any content that has political purposes, including but not limited to online political advertisements;

“online political advertisement” has the meaning assigned to it by Part 4 ;

“political party” has the meaning assigned to it by Part 2 ;

“political purposes” has the meaning assigned to it by section 22 (2)(aa) of the Electoral Act 1997 ;

“polling day order” means an order made by the Minister appointing a day for the holding of a poll which—

(a) in the case of a Dáil election, is made under section 96(1) of the Act of 1992,

(b) in the case of a European election, is made under section 10(1) of the Act of 1997,

(d) in the case of a presidential election, is made under section 6(1)(c) of the Act of 1993,

(e) in the case of a referendum, is made under section 10, 11 or 12 of the Act of 1994, or

(f) in the case of a Seanad election, is made under section 12 of the Seanad Electoral (University Members) Act 1937 and under section 24 of the Seanad Electoral (Panel Members) Act 1947 ;

“public harm” means any serious threat to the fairness or integrity of an election or referendum;

“recommender system” means a fully or partially automated system used by an online platform to suggest in its online interface specific information to recipients of the service, including as a result of a search initiated by the recipient or otherwise determining the relative order or prominence of information displayed.

Online electoral information, disinformation, misinformation and manipulative or inauthentic behaviour functions

145. (1) The Commission shall—

(a) protect the fairness and integrity of elections and referendums in accordance with this Part.

(b) monitor, investigate and combat the dissemination of—

(i) disinformation, and

(ii) misinformation,

(d) monitor, investigate and identify trends in respect of—

(i) disinformation,

(ii) misinformation, and

(iii) manipulative or inauthentic behaviour,

(e) promote public awareness of misinformation, disinformation and manipulative or inauthentic behaviour and it may establish, facilitate or promote educational or information programmes for the purpose of the performance of its functions under this Part.

(a) enter into a contract with any person on such terms and conditions and for such period as the Commission considers appropriate;

(b) pay out of the funds at its disposal, to any person referred to in paragraph (a), such fees (if any) or allowances for expenses (if any) incurred by the person as the Commission may determine.

Establishment and role of Advisory Board

146. (1) The Commission shall establish an online electoral information advisory board (to be known as “the Advisory Board”).

(2) The Advisory Board shall, on request and, if appropriate, by its own motion, provide advice to the Commission on—

(a) the nature and effect of disinformation and misinformation, and

(b) where practicable, on the use by the Commission of its powers under this Part.

(3) The Advisory Board shall comprise not more than 6 persons, to be appointed by the Commission, and each of whom shall have expertise in all or any of the following—

(a) electoral processes (including referendums) in the State,

(b) promoting fairness and integrity in elections and referendums, or

(c) the use of information technology and online dissemination of information in the context of elections and referendums.

(4) The Minister may, with the consent of the Minister for Public Expenditure and Reform, determine the remuneration and expenses, if any, payable to a member of the Advisory Board under this section.

(5) The remuneration and allowances for expenses, if any, determined in accordance with subsection (4) shall be payable by the Commission out of funds at its disposal to a member of the Advisory Board.

Establishment and role of stakeholder council

147. (1) The Commission shall, from time to time, establish 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 Chapter 5.

(2) The stakeholder council shall comprise not more than 15 persons, to be appointed by the Commission, the composition of which shall reflect the views of members of the Oireachtas as well as those of print, broadcast and online media.

Chapter 2

Obligations on online platform

Obligation on online platform to provide information to Commission

148. (1) Where, during an election campaign period, an online platform is satisfied from information of which it is aware, including by way of a notification received by way of a mechanism set up under section 149 , that—

(a) its services may be being used for the purposes of disinformation,

(b) there may be misinformation on its services, or

the online platform shall, without undue delay, notify the Commission of such disinformation, misinformation or manipulative or inauthentic behaviour.

(2) Without prejudice to subsection (1), an online platform with over 1 million unique monthly users in the State shall, as early as possible in an election campaign period, prepare and transmit a report to the Commission specifying any significant risks to the fairness or integrity of an election or referendum posed by disinformation, misinformation, or manipulative or inauthentic behaviour on its services.

(3) The report referred to at subsection (2) shall include information concerning—

(a) the prevalence of relevant misinformation and disinformation on the services provided by the online platform, including notifications received under section 149 ,

(b) the prevalence of manipulative or inauthentic behaviour on the online platform’s service, including notifications received under section 149 ,

(d) significant risks posed by the operation of any recommender system employed by the online platform to distribute and promote content.

(4) The information provided in the report referred to at subsection (2) shall include non-technical summaries of the matters referred to in subsection (3).

(5) The Commission shall monitor the compliance of online platforms with the requirements of this provision.

Obligation on online platform in relation to notification mechanism

149. (1) An online platform shall put mechanisms in place to allow any individual, entity or person to notify it of the presence on the platform of information that the individual or entity considers to be—

(a) disinformation, or

(b) misinformation.

(2) An online platform shall put mechanisms in place to allow any individual, entity or person to notify it of the presence on their service of specific activities or behaviours in respect of online electoral information that the individual or entity considers may amount to manipulative or inauthentic behaviour.

(3) The mechanisms provided for under subsections (1) and (2) shall be accessible, user-friendly and shall allow for the submission of notifications referred to in those subsections exclusively by electronic means.

(4) An online platform shall, without undue delay, assess, process and determine the validity of the concerns raised by notices received under subsection (1) or (2).

(5) An online platform shall maintain a record of all notifications received under subsection (1) or (2) and the outcome of the determination referred to at subsection (4) for a period of 2 years following the end of the electoral period concerned.

(6) An online platform shall make the record referred to at subsection (5) available to the Commission for inspection on reasonable notice.

Chapter 3

Powers of Commission

Monitoring, and investigation, of online electoral information

150. (1) The Commission may, for the purpose of performing its functions under this Part, monitor online electoral information.

(2) Where the Commission reasonably believes that any online electoral information may—

(a) constitute disinformation,

(b) constitute misinformation, or

the Commission, or a member of staff of the Commission, may examine or investigate or appoint an authorised officer to examine or investigate, any such matter and the authorised officer or member of staff shall, following its investigation, furnish a report to the Commission.

(3) The Commission, or member of staff of the Commission, may make such inquiries as it considers appropriate or direct an authorised officer to make such inquiries, and the Commission, member of staff of the Commission or authorised officer, may require any person to furnish without delay any information, document or thing in the possession or procurement of that person that the Commission, member of staff of the Commission or authorised officer may require for the purposes of an investigation.

(4) The powers of an authorised officer conferred on him or her by or under section 137 (1) to (9) shall apply, in like manner and with all necessary modifications, to an authorised officer appointed under subsection (2) or to the Commission, or member of staff of the Commission.

(5) The procedures set out in section 130 (3) to (6) shall, with all necessary modifications, apply to the performance of functions under this Part, by an authorised officer appointed under subsection (1) or by the Commission, or member of staff of the Commission.

(6) Where an authorised officer or a member of staff of the Commission furnishes a report to the Commission in respect of the matters referred to in subsection (1), the Commission shall consider that report and any submissions or recommendations made by the authorised officer or such member.

(7) Where the Commission considers it appropriate, the Commission may invite any person to make any submissions in writing to the Commission within the period specified by the Commission.

(8) Following the Commission’s consideration of the report referred to in subsection (6) and any submissions referred to in subsections (6) and (7), the Commission may—

(a) take no further action,

(b) if it is satisfied that a contravention is taking place or has taken place, exercise any of the powers available to it under sections 153 to 157 with respect to any person whom the Commission considers is contravening or has contravened any provision of this Part,

(d) if it is satisfied that a contravention is taking or has taken place, prosecute any offence that may have been committed in accordance with section 169 .

Delegation of powers of Commission to chief executive

151. (1) Subject to this section, the Commission may, by order, delegate the exercise of such of its powers under section 153 , 154 , 155 , 156 or 157 as the Commission considers appropriate to the chief executive or to another member of the Commission and the chief executive or other member of the Commission shall perform such duties as are appropriate to the powers so delegated and shall for that purpose act in place of the Commission.

(2) Where a delegation is made under subsection (1)—

(a) the chief executive or other member of the Commission shall exercise the delegated power under the general direction and control of the Commission,

(b) the chief executive or other member of the Commission shall exercise the delegated power in accordance with such (if any) limitations as may be specified in the delegation as to the period in which or the extent to which he or she is to exercise that power, and

(c) a provision referred to in subsection (1) under which powers are vested in the Commission or which regulates the manner in which any such power is to be exercised shall, if and in so far as it is applicable to the delegated power, have effect, for the purposes of the exercise of the power by the chief executive or other member of staff of the Commission, with the substitution of the chief executive or other member of staff of the Commission for the Commission and every such provision shall be read accordingly.

(3) Where the exercise of a power is delegated under this section, the power shall continue to be vested in the Commission but shall be so vested concurrently with the chief executive or other member of the Commission to whom it is delegated so as to be capable of being exercised by either the Commission or the chief executive or other member of the Commission concerned.

(4) The Commission may, by order, amend or revoke a delegation made under this section.

(5) The Commission may, at any time, furnish any materials or information arising from an investigation under section 150 , including any report, to the chief executive or other member of staff of the Commission to whom the exercise of a power has been delegated under subsection (1) where the Commission considers that the information may be necessary in order to allow the proper exercise of the powers concerned.

Exercise of powers of Commission

152. (1) The Commission shall only exercise its powers under sections 153 , 154 , 155 , 156 , 157 or 158 where the Commission is satisfied that it is in the public interest to do so, having regard to all the circumstances including the rights of any person whom the Commission considers may be affected by the exercise of such powers.

(2) Without prejudice to subsection (1), the Commission shall, in considering the exercise of its powers under sections 153 , 154 , 155 , 156 , 157 or 158 give due weight to the following matters:

(a) the right to freedom of expression;

(b) the right to freedom of association;

(d) the obligation on the State to defend and secure the fairness and integrity of elections and referendums.

(3) Without prejudice to subsections (1) and (2), the Commission shall, in considering the exercise of its powers under sections 153 , 154 , 155 , 156 , 157 or 158 have regard to the following matters:

(a) the need to ensure the economic and efficient use of the Commission’s resources;

(b) the public harm concerned, as it relates to the overall integrity and fairness of the election or referendum;

(4) The Commission shall prepare and publish guidelines to inform the proper exercise, by the Commission or a person to whom the exercise of a power has been delegated under section 151 , of its powers under this Part.

(5) Guidelines under subsection (4) may include measures to ensure that the exercise of the Commission’s powers is transparent to the public and in accordance with international best practice and in the public interest.

(6) Any notice or order issued under section 153 , 154 , 155 , 156 or 157 shall—

(a) include a statement of reasons for the Commission’s opinion that it is appropriate that such notice or order should be issued,

(b) specify the time and date by which the person to whom the notice or order is addressed shall comply with the notice or order,

(c) specify the time and date by which the person to whom a notice or order is addressed shall confirm to the Commission that the notice or order has been complied with,

(d) state that the person to whom the notice or order is addressed may appeal the notice or order pursuant to section 161 and that such appeal shall be made through the portal on the Commission’s website within a period 5 days from the date on which the notice or order was issued,

(e) state that if no such appeal is made in accordance with section 161 , that the notice or order shall be treated as not disputed, and

(f) state that it is an offence not to comply with the notice or order.

(7) For the avoidance of doubt, the Commission may determine that it is appropriate having regard to all the circumstances to issue more than one notice or order under section 153 , 154 , 155 , 156 or 157 in relation to the same online content or behaviour.

Take-down notice

153. (1) Where—

(a) during an election campaign period, the Commission is satisfied from the information available, whether obtained through its monitoring, or otherwise, of online electoral information or provided by any other person or otherwise, that any online electoral information constitutes disinformation, or

(b) at any time, the Commission is satisfied from the information available, whether obtained through monitoring, or otherwise, of online electoral information or provided by any other person or otherwise, that any online electoral process information constitutes misinformation,

and the Commission is satisfied that the issuing of such a notice is necessary to protect the fairness or integrity of the election or referendum, the Commission may issue a take-down notice requiring any natural or legal person, including any online platform, to remove, within a specified period, the content to which the take-down notice relates.

(2) A notice under this section shall:

(a) include a statement of reasons for the Commission’s opinion that the conditions in subsection (1) are met;

(b) include the precise online location of the online electoral information referred to in subsection (1)(a) or the online electoral process information referred to in subsection (1)(b) and, where necessary, any additional data enabling the identification of the information;

(c) contain a statement of the Commission, in compliance with subsection (3), in respect of the online electoral information referred to in subsection (1)(a) or the online electoral process information referred to in subsection (1)(b);

(d) inform the person to whom the notice is addressed that he, she or it shall cause the statement in paragraph (c) to be published at the online location referred to in paragraph (b);

(e) inform the person to whom the notice is addressed of the right to appeal the notice under section 161 within 5 days from the date on which the notice was issued.

(3) The statement referred to at subsection (2)(c) shall—

(a) state that it is a statement required to be published pursuant to a take-down notice issued by the Commission, under which the removal of certain content visible at a precise online location has been required by the Commission pursuant to this section,

(b) state that this action has been taken because the content previously published at the location constituted disinformation or misinformation,

(c) contain a summary of the reasons for the Commission’s opinion that it was necessary to require the removal of the information in order to protect the fairness or integrity of the election or referendum, as the case may be, and

(d) state that any natural or legal person directly affected by the notice may appeal the notice under section 161 within 5 days from the date on which the notice was issued.

Correction notice

154. (1) Where—

(b) at any time, the Commission is satisfied from the information available, whether obtained through its monitoring, or otherwise, of online electoral information or provided by any other person or otherwise, that any online electoral process information constitutes misinformation,

and the Commission is satisfied that the issuing of such a notice is necessary to protect the fairness or integrity of the election or referendum, he or she may issue a correction notice requiring any natural or legal person to whom it is directed, including any online platform, to communicate to all persons who access the online platform a statement by the Commission under this section.

(2) A notice under this section shall—

(a) include a statement of reasons for the Commission’s opinion that the conditions in subsection (1) are met,

(d) inform the person to whom the notice is addressed that he or she shall cause the statement in paragraph (c) to be published at the online location referred to in paragraph (b),

(e) inform the person to whom the notice is addressed of the right to appeal the notice under section 161 within 5 days from the date on which the notice was issued.

(3) The statement referred to in subsection (2)(c) shall—

(a) state that it is a statement required to be published pursuant to a correction notice issued by the Commission under which the correction of certain content visible at a precise online location has been required by the Commission pursuant to this section,

(b) state that this action has been taken because the content at the online location constituted disinformation or misinformation,

(c) contain a summary of the reasons for the Commission’s opinion that the issuing of a correction notice was appropriate in all the circumstances to protect the fairness or integrity of the election or referendum, as the case may be,

(d) state that any natural or legal person directly affected by the notice may appeal the notice under section 161 within 5 days from the date on which the notice was issued.

(4) The statement referred to in subsection (2)(c) may also contain any or all of the following:

(a) a statement setting out in what respects the content was false or misleading;

(b) a correct statement of information; and

(c) such further information or statement as the Commission shall deem appropriate, having regard to all the circumstances.

Labelling order

155. (1) Where—

(b) at any time, the Commission is satisfied from the information available, whether obtained through its monitoring, or otherwise of online electoral information or provided by any other person or otherwise, that any online electoral process information may constitute misinformation,

and the Commission is satisfied that the issuing of such an order is appropriate in all the circumstances, the Commission may, pending further investigation by the Commission, issue a labelling order requiring the online platform to state that the subject content is currently being investigated by the Commission pursuant to this Part to determine whether or not it constitutes disinformation or misinformation.

(2) An order under this section shall:

(a) include a statement of reasons for the Commission’s opinion that the conditions in subsection (1) are met;

(d) inform the person to whom the notice is addressed that he, she or it shall cause the statement in paragraph (c) to be published at the online location referred to in paragraph (b);

(e) inform the person to whom the notice is addressed of the right to appeal the order under section 161 within 5 days from the date on which the notice was issued.

(3) The statement referred to in subsection (2)(c) shall:

(a) confirm that it is a statement required to be published pursuant to a labelling order issued by the Commission under this section, where the Commission is of the opinion that the subject statement may contain disinformation or misinformation;

(b) state that the issuing of the order is not a determination that the content is either disinformation or misinformation;

(d) state that a determination as to whether the content is disinformation or misinformation shall be made pending further investigation; and

(e) state that any natural or legal person directly affected by the order can appeal the order under section 161 within 5 days.

(4) The order may also contain such further information or statement as the Commission shall deem appropriate having regard to all the circumstances.

(5) The Commission shall make the determination referred to in subsection (3)(d) and, as soon as reasonably practicable—

(a) shall give a direction to the person to whom the labelling order was directed informing that person that the labelling order has been revoked, or

(b) where the determination is that the content is disinformation or misinformation, may, as it considers appropriate, exercise any of its powers under section 153 , 154 or 156 .

(6) Where the Commission gives a direction referred to in subsection (5)(a), the statement referred to in subsection (2)(c) shall be taken down.

Access-blocking order

156. (1) Where—

(a) during an election campaign period, the Commission is satisfied from information available, whether obtained through its monitoring, or otherwise, of online electoral information or provided by any other person or otherwise, in relation to a previously identified online location, that any online electoral information constitutes disinformation,

(b) at any time, the Commission is satisfied from information available in relation to a previously identified online location, obtained through its monitoring of online electoral information or provided by any other person or otherwise, that any online electoral process information constitutes misinformation, or

(c) during an election campaign period, the Commission is satisfied from the information available, that bot activity that constitutes manipulative or inauthentic behaviour or the use of an undisclosed bot contrary to section 167 is taking or has taken place at a previously identified online location, and the Commission is satisfied that the issuing of such an order is necessary to protect the fairness or integrity of the election or referendum, the Commission may issue an access-blocking order, for such period as the Commission considers appropriate, requiring any online platform to take reasonable steps to disable access to the online location.

(2) An order under this section shall:

(a) include a statement of reasons for the Commission’s opinion that the conditions in subsection (1) are met;

(b) include the precise previously identified online location for the online electoral information referred to in subsection (1)(a) or the online electoral process information referred to in subsection (1)(b);

(d) inform the person to whom the order is addressed that he or she shall cause the statement in paragraph (c) to be published at the previously identified online location referred to in paragraph (b);

(e) inform the person to whom the order is addressed of the right to appeal the order under section 161 within 5 days from the date on which the order was issued.

(3) The statement referred to in subsection (2)(c) shall state clearly—

(a) that an access-blocking order has been issued pursuant to this section,

(b) a summary of the reasons why the Commission made the order, and

(c) such further information as may be specified in guidelines issued under section 152 or deemed necessary or appropriate by the Commission in all the circumstances.

(4) The order may also contain such further information or statement as the Commission shall deem appropriate having regard to all the circumstances.

(5) In this section, “previously identified online location” means an online location where 2 or more separate pieces of online content have been the subject of a notice or order under section 153 , 154 , 156 or 157 within the same electoral period, which election period is the same as the election period in respect of which it is proposed to make the access-blocking order.

Manipulative or inauthentic behaviour (including undisclosed bot activity) notice

157. (1) Where, during an election campaign period, the Commission is satisfied from the information available that—

(a) bot activity that constitutes manipulative or inauthentic behaviour or the use of an undisclosed bot contrary to section 167 is taking or has taken place, and

(b) the issuing of a notice under this subsection is necessary to protect the fairness or integrity of an election or referendum,

the Commission may issue a notice, giving reasons, requiring any online platform to publish a statement informing all users of the manipulative or inauthentic behaviour or the use of an undisclosed bot that is contrary to section 167 .

(2) The statement required to be published under subsection (1) shall—

(a) state that the Commission pursuant to this section has issued a notice identifying bot activity that constitutes manipulative or inauthentic behaviour,

(b) state that this action has been taken because the bot activity threatened the fairness or integrity of an upcoming election or referendum,

(c) contain the statement of reasons for the Commission’s opinion that it was appropriate to require the publication of the statement in relation to the activity in all the circumstances, and

(d) state that any natural or legal person directly affected by the notice may appeal the notice under section 161 within 5 days from the date on which the notice was issued.

(3) Where, during the electoral period, the Commission is satisfied that—

(a) manipulative or inauthentic behaviour has occurred (including where such behaviour involves the use of bots), and

(b) the issuing of a notice under this subsection is necessary to protect the fairness or integrity of an election or referendum,

the Commission may issue a notice requiring any online platform to take reasonable steps to prevent or prohibit such behaviour or use.

(4) A notice under subsection (3) shall—

(a) state that the Commission, pursuant to this section, has issued a notice requiring the cessation of the behaviour in question because it has been identified as manipulative or inauthentic behaviour,

(b) state that this action has been taken by the Commission because the identified activity threatened the fairness or integrity of an upcoming election or referendum,

(c) contain a statement of reasons for the Commission’s opinion that it was appropriate to require any online platform to take reasonable steps to prevent or prohibit such behaviour or use, and

(d) state that any natural or legal person directly affected by the notice may appeal the notice under section 161 within 5 days.

Application to court for order directing compliance with notice or order

158. (1) The Commission may apply to the High Court for an order directing compliance with a notice or order issued under section 153 , 154 , 155 , 156 or 157 .

(2) An application under subsection (1) may be made in relation to a person outside the State where a notice or order referred to sections 153 , 154 , 155 , 156 or 157 is addressed to that person and relates to anything done or omitted to be done under those sections.

Communication with public

159. (1) The Commission may, in such manner it considers appropriate, communicate with the public or any class of the public in relation to misinformation, disinformation or the use of manipulative or inauthentic behaviour.

(2) The Commission may where it is of the opinion that there is a threat to the fairness or integrity of an election or referendum such that it is in the public interest to draw attention to such threat, communicate with the public in relation to that threat.

(3) The Commission may, when communicating with the public under subsection (2) specify—

(a) the nature, source and severity of the threat,

(b) any actions the Commission proposes to take or consider in relation to it, and

Mechanism for public to report disinformation, misinformation and manipulative or inauthentic behaviour

160. The Commission may provide a direct reporting facility on its website to allow members of the public to report—

(a) suspected instances of disinformation during an electoral period or election campaign period,

(b) suspected instances of misinformation at any time, or

(c) suspected manipulative or inauthentic behaviour, including the undisclosed use of bots, during an electoral period or election campaign period.

Chapter 4

Procedural rights

Appeal to appeal panel

161. (1) The Commission shall, from time to time, establish an appeal panel which shall be comprised of one or more members of the Commission and shall be independent of the original decision-maker.

(2) (a) An appeal may be made to an appeal panel in respect of any notice or order issued pursuant to sections 153 , 154 , 155 , 156 or 157 , not later than 5 days from the date on which the notice or order was issued, but the making of an appeal shall not, pending the outcome of the appeal, affect the operation of the notice or order, unless the appeal panel otherwise directs.

(b) An appeal under paragraph (a) may be made by—

(i) any natural or legal person directly affected by the notice or order, or

(ii) an online platform.

(c) No appeal shall be accepted unless it has been submitted by a natural person (whether on their own behalf or on behalf of a named legal person), and such natural person shall provide such information as may be specified by the Commission.

(3) An appeal under subsection (2)—

(a) shall be in writing, made through a portal provided on the Commission’s website for that purpose,

(b) shall state all of the grounds on which the appeal is made and provide to the appeal panel all of the documents and evidence intended to be relied on to support those grounds, and

(c) shall be addressed to the chairperson of the appeal panel and be delivered or sent so as to reach the chairperson within the period specified in subsection (2).

(4) The appeal panel 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.

(5) The Commission 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 a website maintained by or on behalf of the Commission.

(6) An appeal under this section shall be heard by the appeal panel or by such specified member or members of the appeal panel as may be assigned by the appeal panel to hear the appeal.

(7) The appeal panel shall have discretion as to the conduct of an oral hearing under this section and shall conduct the hearing or ensure that the hearing is conducted expeditiously and without undue formality.

(8) The appeal panel, in determining an appeal under this section—

(a) shall consider the grounds for the appeal stated pursuant to subsection (3)(b),

(b) shall consider the notice or order, and any such other information in connection with the notice or order as, in the opinion of the appeal panel, may be relevant to its determination, and

(9) In determining an appeal under this section, the appeal panel may, if satisfied that it is reasonable to do so—

(a) confirm the notice or order,

(b) vary the notice or order on such terms as it considers appropriate, or

(10) If, on appeal, the appeal panel varies the notice or order, the notice or order as so varied takes effect immediately on the determination of the appeal.

(11) The appeal panel may, for the purpose of ensuring the efficient, fair and timely determination of an appeal, specify procedures in respect of the conduct of the appeal.

(12) The appeal panel may request in writing information from any person within the period specified in the request as it may reasonably require for the purposes of the performance of its functions under this section.

(13) It shall be an offence to submit an appeal in the name of another person or in a false name, or on behalf of a company absent the consent of the directors of that company (or as may be provided for in the company’s constitution).

(14) An appeal shall be heard and determined as soon as is practicable.

Judicial review

162. Nothing in this Part shall be construed as limiting the entitlement of a person affected by a decision of the Commission to apply to the High Court to seek relief by way of an application for judicial review.

Chapter 5

Codes of conduct

163. (1)(a) The Commission may publish codes of conduct in respect of online electoral information or online electoral process information.

(b) A code published under paragraph (a) shall, as soon as is practicable, be laid before both Houses of the Oireachtas.

(2) A code referred to in subsection (1) may be addressed to:

(a) an online platform;

(b) a candidate in an election;

(d) any other person.

(3) The Commission may, before publishing a code of conduct under subsection (1), consult with the Advisory Board, the stakeholder council or any other group convened by the Commission for that purpose.

(4) A code of conduct published under subsection (1) that relates to online electoral information other than online electoral process information shall have effect during a specified electoral period only.

(5) The Commission may determine whether a code of conduct is an optional code of conduct or a mandatory code of conduct.

(6) The Commission shall, before publishing a code of conduct under subsection (1), have regard to the following:

(a) the need to protect democratic values in society;

(b) the public interest in having a well-informed electorate;

(d) the right to freedom of expression;

(e) the right to freedom of assembly.

(7) Where, in the opinion of the Commission, a person to whom a [mandatory] code of conduct is addressed is failing or has failed to comply with the code, the Commission may apply, by motion, to the High Court for an order directing the person to comply with the code, and the Court may, as it thinks fit, on the hearing of the application, make or refuse to make such an order.

Chapter 6

Consultation

Consultation by Commission

164. (1) The Commission may, where it considers appropriate for the purposes of its functions under this Part, consult with, and have regard to any information received from—

(a) the Data Protection Commission,

(b) An Garda Síochána,

(d) the Minister for the Environment, Climate and Communications, acting in his or her capacity as competent authority under the European Union (Measures for a High Common Level of Security of Network and Information Systems) Regulations 2018 ( S.I. No. 360 of 2018 ).

(2) Where—

(a) the Data Protection Commission,

(b) An Garda Síochána,

receives or becomes aware of information regarding activities or trends which may affect the fairness or integrity of an election or referendum, the authority or the Minister referred to in paragraph (d), as the case may be, shall immediately notify the Commission of the said information, activities or trends.

Chapter 7

Offences and penalties

Offence of failing to comply with notice or order issued under sections 153 to 157

165. (1) It shall be an offence for any person to fail to comply with any notice or order issued under section 153 , 154 , 155 , 156 or 157 , whether that notice or order is addressed to a person within or outside the State.

(2) A person found guilty of an offence under this section shall be liable—

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

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

Offences of disinformation and misinformation

166. (1) A person who, or any director of a body or association which, during the electoral period or election campaign period with the intention of influencing the results of an election or referendum, or of interfering with the fairness or integrity of that election or referendum, makes or publishes—

(a) a false statement of the withdrawal of a candidate for election from that election,

(b) a false statement of fact (including but not limited to a statement of misinformation) with the intention of causing one or more voters to abstain from voting in the election or referendum, or

shall be guilty of an offence, unless that person can show that he or she had reasonable grounds for believing and did believe that the statement was true.

(2) A person found guilty of an offence under this section shall be liable—

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

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

Offence of using undisclosed bot to mislead or influence election or referendum

167. (1) Any person who knowingly uses a bot, or causes a bot to be used, in such a way as to generate multiple online presences that—

(a) are directed towards influencing the result of an election or referendum,

(b) are designed or intended to mislead persons as to the bot’s artificial identity, or

shall be guilty of an offence.

(2) It shall be a defence in proceedings for an offence under this section for a person to show that the use of the bot concerned was disclosed in a manner that was clear, conspicuous and reasonably designed to inform persons with whom the bot interacted or communicated or was intended to interact or communicate that it was a bot.

(3) A person found guilty of an offence under this section shall be liable—

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

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

Offence of failure to comply with obligations placed on online platform

168. (1) An online platform which fails to comply with section 149 shall be guilty of an offence.

(2) A person found guilty of an offence under this section shall be liable—

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

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

Prosecution of offences

169. (1) Subject to subsection (2), summary proceedings for an offence under this Part may be brought and prosecuted by the Commission.

(2) Proceedings for an offence under this Part shall not be instituted except by or with the consent of the Director of Public Prosecutions.

(3) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act 1851 , summary proceedings for an offence under this Part may be instituted within 2 years from the date on which the offence was committed or alleged to have been committed.

(4) Where an offence under this Part is committed by a body corporate and is proved to have been so committed with the consent or connivance of, or to be attributable to any wilful neglect on the part of, any person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(5) Where the affairs of a body corporate are managed by its members, subsection (4) applies in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.

(6) (a) Where a person is convicted of an offence under this Part, the court may, where it is satisfied that there are good reasons for so doing, order the person to pay to the prosecution the costs and expenses, measured by the court, incurred by the prosecutor in relation to the investigation, detection and prosecution of the offence, including the costs and expenses of and incidental to an examination of any information provided to the Commission or an authorised officer.

(b) An order for costs and expenses referred to in paragraph (a) shall be in addition to and not instead of any fine or penalty the court may impose.

Extraterritoriality

170. (1) A person who, in a place outside the State—

(a) does an act or fails to do an act that, if done or was omitted to be done in the State, would constitute an offence under section 165 , or

(b) does an act that, if done in the State, would constitute an offence under section 166 or 167 ,

shall be guilty of an offence.

(2) A person guilty of an offence under this section is liable on conviction to the penalty to which he or she would have been liable if he or she did the act or failed to do the act that constitutes the offence in the State.

(3) Proceedings for an offence under subsection (1) may be taken in any place in the State and the offence may, for all incidental purposes, be treated as having been committed in that place.

(4) Where a person is charged with an offence under this section, no further proceedings in the matter (other than a remand in custody or on bail) may be taken except by, or with the consent of, the Director of Public Prosecutions.

Chapter 8

Miscellaneous

Immunity from suit

171. (1) The Commission shall perform its duties under this Part bona fide and in the interests of the public and electorate in general, having regard to the resources available to it and no action shall lie against it by reason merely of an alleged failure to perform such duties.

(2) No action shall lie personally against any member of the Commission by reason of any act or omission in the performance of his or her duties under this Part.

Service of notices or orders

172. Service of a notice or order issued under section 153 , 154 , 155 , 156 or 157 shall be made in accordance with section 142 .

Online Political Publicity

ELECTORAL REFORM ACT 2022

Regulation of online political advertising

Interpretation

Public information requirements for online political advertisements

Obligations on online platforms regarding online political advertisements

Obligations on buyers regarding online political advertisements

Online political advertisements commissioned from outside the State

Exemptions from public information requirements

Functions of the Commission

Appointment of authorised officers

Monitoring compliance for the purposes of this Part

Investigations

Compliance notice

Appeal to District Court from compliance notice

Directions

Appeal to Board from direction

Judicial review

Requirement on online platform and buyer of online political advertisement to retain records, information and documentation

Powers of authorised officers

Power of Commission to obtain information from online platform and buyer of online political advertisement

Power of Commission to request information from other persons

Offences and penalties

Online platform liable for acts of third parties engaged by it to carry out its obligations under this Part

Review of Part 4

Regulation of electoral process information, online electoral information and manipulative or inauthentic behaviour

Definitions (Part 5)

Online electoral information, disinformation, misinformation and manipulative or inauthentic behaviour functions

Establishment and role of Advisory Board

Obligations on online platform

Obligation on online platform to provide information to Commission

Obligation on online platform in relation to notification mechanism

Monitoring, and investigation, of online electoral information

Exercise of powers of Commission

Take-down notice

Correction notice

Labelling order

Access-blocking order

Manipulative or inauthentic behaviour (including undisclosed bot activity) notice

Application to court for order directing compliance with notice or order

Communication with public

Mechanism for public to report disinformation, misinformation and manipulative or inauthentic behaviour

Appeal to appeal panel

Judicial review

Codes of conduct

Consultation by Commission

Offences and penalties

Offences of disinformation and misinformation

Offence of using undisclosed bot to mislead or influence election or referendum

Offence of failure to comply with obligations placed on online platform

Prosecution of offences

Extraterritoriality

Immunity from suit

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