The European Commission has raised concerns about Ireland’s planned Electoral Reform Bill 2022, which seeks to increase transparency in political advertising in the online sphere.

In a detailed opinion, the Commission highlighted a number of incompatibilities between the draft Electoral Reform Bill and the e-Commerce Directive and concluded that a number of outstanding issues remained regarding its practical interpretation.

The first matter noted by the Commission was that according to the draft legislation, online platforms are criminally liable for failing to take action against advertisements of which there are ‘reasonable grounds’ to believe are in contravention of the notified draft, and thus constitute illegal advertisement.

Lower standard of knowledge

Following requests for clarification from Irish authorities, the Commission noted that the responsibility to determine what constitutes a political advertisement rests with the online platform. Although exemption of criminal liability applies if the online platform doesn’t have actual knowledge of the illegal activity, according to the Commission this imposes a lower knowledge standard than the ‘actual knowledge’ standard created by Article 14 of the e-Commerce legislation.

Onerous systemic monitoring

In practical terms, in order to avoid criminal liability online platforms would be required to i) obtain and assess documentation to verify the buyers and ii) determine whether the ad 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. 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, or a general obligation actively to seek facts or circumstances indicating illegal activity.

In light of such, the Commission pointed out that the lengthy and costly fact-checking process could interfere with the right to freedom of expression, freedom of information and the freedom to conduct a business. The Commission offered practical solutions that would impose a proportionate duty of care on online platforms, such as conducting a reasonable level of random checks according to the needs of electoral periods.