Update on the Electoral Reform Act 2022
The Electoral Reform Act 2022 (the Act), brings about significant changes to the electoral system in Ireland.
From the perspective of online platforms, Part 4 and Part 5 will be of key importance as they impose new obligations on platform providers to (i) ensure transparency in respect of online political advertising on their services; and (ii) to notify/take action in respect of dis/misinformation relating to online electoral processes on their services.
While the Act was signed into law on 25 July 2022, only certain sections of the Act have been commenced. Part 4 and Part 5 of the Act have not yet been commenced.
Part 4 (Regulation of Online Political Advertising)
Part 4 of the Act seeks to create a new regulatory framework for online political advertising and online content concerning elections. Part 4 introduces a range of measures with the aim of creating a fair and transparent environment in which electoral competition occurs – platform providers will be obliged to mark political advertisements, maintain online archives of such advertisements and obtain from advertisement buyers a statutory declaration as to the accuracy of information therein.
Part 5 (Regulation of Electoral Process Information, Online Electoral Information and Manipulative or Inauthentic Behaviour)
Part 5 sets out obligations for platform providers, including to provide information to the Electoral Commission regarding disinformation, misinformation or manipulative and inauthentic behaviour it becomes aware of on their platform. Providers will also be required to install a notification mechanism allowing for notification of the presence of disinformation, misinformation or manipulative and inauthentic behaviour on their platform.
These parts of the Act, while it was still at Bill stage, were notified to the European Commission pursuant to the technical regulation information system (TRIS) notification procedure. The TRIS notification procedure requires Member States to notify certain draft legislation to the European Commission and other Member States before its adoption, so as to ensure the draft legislation complies with EU law and market rules.
The European Commission has issued a detailed opinion on Part 4 finding that the obligations it imposes are inconsistent with the “safe harbour” provisions set out in the e-Commerce Directive. The Irish Government has responded to this opinion and is required to set out what actions it intends to take in response, but this response is confidential.
It remains to be seen how these clarifications will be implemented, given that the Act has already been signed into law.
For more information on this topic, please contact Andrea Lawler, Partner, Commercial & Technology, Claire Bulman, Solicitor, Commercial & Technology or any member of A&L Goodbody’s Commercial & Technology team