Wholly Unregulated: what to do about the digital blackhole in Irish referendum regulation

A billboard from the 1996 divorce referendum. Political ads were never pleasant, but they were visible (source: rollingnews.ie)

The way we ensure referendums are fair is out of date. Most of us get our information online; a domain “wholly unregulated” in electoral terms. History suggests the law will eventually try to catch up; a risky prospect that may focus on the impossible task of enforcing “balance”. A better focus is on the more pressing problem of ephemeral and untraceable political ads.

The referendum on the 8th Amendment offers a testing ground for using transparency to improve the online environment for debate, and to set a template for future regulation based around transparency and an empowered, permanent Election Commission.

We take regulating referendums seriously in this country. The Citizens Assembly are looking at this regulation this weekend to see if it can be improved. They have heard that the regulations are out of date, especially concerning balance in digital media.

However, there is arguably a bigger problem; that ephemeral online political advertising will prevent enforcement of the regulations that we do have. Greater transparency on the ads being targeted at voters, combined with a permanent Election Commission can help.

The Assembly heard from experts including UCC’s Dr. Conor O’Mahony (all of the papers and presentations are available online, and they’re great!)

Dr. O’Mahony explains that much of the regulation focuses on the information voters receive during a campaign. He explains that the regulations:

  1. Try to ensure that information influencing voters is not financed by either state funds, foreign actors or anonymous individuals.
  2. Have empowered the Referendum Commission to push back on misinformation, including untrue claims that the Marriage Equality referendum concerned surrogacy.
  3. Force TV and radio to be “balanced” in their coverage — to grant equal time to each side.

He also points out that there is a worrying blackhole in the regulation; the online world. He writes:

“While {there are} strict requirements on broadcast media, print media and digital media are wholly unregulated when it comes to referendum campaigns and may adopt entirely partisan positions” (Dr. Conor O’Mahony, UCC. Emphasis added)

While Dr. O’Mahony is referring to balance, his point could be extended to the fact that digital media can hide expenditure and referendum information from regulators.

As I pointed out in December, right now it is possible for any individual or group to pay social media platforms to put information aimed at influencing voting behaviour in front of small, targeted sub-sections of Irish society.

Targeting audiences is not new in political campaigning; what is different is that this can now be done without leaving a paper or digital trail that allows for the enforcement of referendum regulations.

Only those placing the ad and the social media company have a record of what ad was placed, who was targeted, who paid for it, and how much they paid. Those targeted by the ad can see it, but only for a short period of time.

While (positive) new features mean the people being targeted can see why they have been singled out, the ad is all but invisible to everyone else.

Paid for political ads are therefore invisible to the Referendum Commission and SIPO, the institutions responsible for making sure that we know who has financed the information influencing voters, as well as to them and the journalists who can push back on misinformation.

This matters; social media will be a hugely influential and impactful part of the campaign.

Extract from the Reuters Institute / FuJo research “Digital News Report 2017”.

Research last year showed us that fewer than one in three of Irish people get our news exclusively through the “traditional” channels of TV and radio.

In fact, almost a quarter of us exclusively get our news online.

We know that there were concerted efforts to influence recent campaigns in the US & UK using targeted ads that that were misleading. We also know that this was a preferred way for foreign actors to influence the opinions of voters; Russian content reached an estimated 126 million people in 2016 US election.

I’m not saying that the Russians are coming, but the abortion debate is one with salience far beyond the Irish border. Even if foreign influence is avoided, fears and accusations are flying on both sides, and this at the very least may undermine confidence in the process.

A Citizens’ Assembly paper by Niamh Hyland SC outlined the history of referendum regulation as a system of Dáil Acts, case law and institutions that have evolved as we learn from mistakes or adapt to new circumstances.

We can anticipate that regulation of the online environment will emerge down the line, as we come to grips with what will have happened in this case.

However regulating anything to do with the internet is notoriously tricky. Things shifts so quickly that setting regulations in stone is a bit like nailing jelly to the wall.

An arguably better approach is to use transparency as a part of the regulatory system, as we have done with financial donations.

You can donate money to a referendum campaign, but you have to do so publicly. There is no reason why that same principle shouldn’t apply to online advertising.

As I wrote in a paper last year, transparency only helps accountability if there are people and organisations there that can analyse and use the newly available data, and demand and enforce change.

The link between transparency and accountability — it only works if there are the people and organisation to process and use it to take action and demand a response. By a paper I wrote for TAI.
We should therefore revisit the idea of a proper Election Commission for Ireland, with a permanent investigations team and the ability to adapt and respond in real time to changes in the digital landscape.

However we don’t have to sit around and wait for this.

Social media companies can make a pre-emptive strike by increasing the transparency of targeted ads being placed in Ireland related to the themes of the debate.

This can inform the inevitable post-referendum political and legal debates about the future evolution of electoral reform.

We can also support the media organisations who will no doubt continue to investigate and probe the validity and funding sources of the information being shared during the upcoming referendums.

Social media is not the problem. We know from the Marriage Equality and other campaigns that social media can be a powerful force for getting people informed and organised. A lack of transparency, and of the support structure around it to enforce accountability, is a problem.

The upcoming referendum on the 8th will need all the help it can get to be an environment — on and offline — where citizens can engage with the information they need to vote.

Luckily, we can take positive steps now to help this time around, as well as in the longer term.