Government’s Electoral Reform Bill 'incompatible' with EU directives on online advertising

The bill was rushed through last week — even though the European Commission had issued its detailed opinion on July 5

The 'Irish Examiner' sought a comment from the office of Housing Minster Darragh O'Brien about the European Commission finding, but none was forthcoming. File picture

The European Commission has found that parts of the Government’s Electoral Reform Bill rammed through the Oireachtas last week, are incompatible with European law directives on online advertising.

Housing Minister Darragh O’Brien has been criticised by the opposition for the “grossly irresponsible” manner in which the legislation was guillotined last week, even though the commission issued its judgment on July 5.

The commission has found that three sections of the bill relating to political advertising are not compliant with Articles 14 and 15 of the EU’s ecommerce directive.

The Government has until August 5 to respond to this detailed opinion and is obliged to inform the commission of the action it intends to take to rectify this situation. 

“Should the Irish government not comply or should the draft text be adopted without account being taken of the above objections, the commission may commence proceedings,” the judgement stated.

A comment in response from Mr O’Brien’s office was sought prior to publication but none was forthcoming.

The opinion shows the commission found the proposed bill to be in violation of EU law on freedom of expression grounds. Crucially, this was the part of the bill that was not debated in the Oireachtas as the bill was guillotined.

To avoid criminal liability, online platforms would be required to obtain and assess documentation to verify the buyers and determine if the advert in question constitutes an advertisement prior to posting it.

According to the commission, this poses an onerous duty on online platforms to systematically monitor the publication of political advertising. It said this is in violation of Article 15 of the e-commerce directive which prohibits member states from imposing a general obligation on intermediary service providers to monitor the information that they transmit or store.

Speaking to the Irish Examiner, Social Democrats Housing spokesman Cian O’Callaghan, said huge parts of this very important bill were “rammed through” the Dáil and never debated.

“It was grossly irresponsible given these rules will have a profound impact on how elections will be held in Ireland,” he said.

He said the Government must now address the commission’s judgement and allow for proper scrutiny by way of an amendment bill.

Sinn Féin’s housing spokesman Eoin Ó Broin also criticised the failure of Mr O’Brien to inform TDs of this judgement during final stage debates last week.

However, Mr Ó Broin raised a concern that the commission could be seeking to extend its reach into the realm of how elections are run, a matter which is normally the preserve of national governments. He said: 

I would have a concern that the EU is seeking to extend its powers into an area where it has no role. But the Government’s failure to inform us of this EU judgement is not acceptable.

Last week, Mr O’Brien and the Government were severely criticised for rushing through several pieces of key legislation by use of the guillotine, meaning large sections of the new laws were not properly scrutinised.

Labour TD Brendan Howlin hit out that substantial amendments were tabled that were never debated.

“Those amendments are most unlikely to be reached in the 45 minutes that we have for the debate. I believe there are fundamental errors in the drafting of the Bill because it has been so rushed,” he said.