LEGISLATION PASSED IN 2022 that would empower the state to tackle online election misinformation and disinformation has been put on ice.

The European Commission and a coalition of tech firms including Google, Meta (parent company of Facebook) and TikTok complained that the Irish law went further than EU rules that came into force since the Irish law was adopted.

Now the law has to be amended and the government cannot guarantee it will be in place in time for this year’s presidential election.

In October, the European Commission told Micheál Martin, who was then Minister for Foreign Affairs, that if the government failed to take account of a litany of objections it raised to the Irish law, Brussels reserved the right to initiate pre-litigation proceedings – signalling it would be prepared to take Ireland to court.

Simon Harris, then Taoiseach, promised a year ago to enact Part V of the 2022 Electoral Reform Act in time for the June 2024 local and European elections, which gives the newly established Electoral Commission significant powers to fight misinformation and disinformation during elections.

However, the legislation was not enacted in time for last year’s local and European or general elections and officials are now drafting an amended version.

False claims during last year’s elections

Misinformation flourished online in the run-up to the June election. 

In a two and a half-week period up until 12 June, the Institute for Strategic Dialogue (ISD), a think tank, documented 162 posts on X, Telegram, Facebook, YouTube, and TikTok claiming election interference in relation to the local and European elections.

These false claims – mainly around non-citizens’ legal rights to vote, but also including ‘voter harvesting’ conspiracy theories and ‘election rigging’ narratives imported form the US Stop the Steal movement – were viewed almost 4 million times.

Dozens of similar examples were also identified by ISD during the recent general election.

There is also evidence of a disinformation risk in Ireland, including during the recent general election.

An investigation by the NGO Global Witness during last November’s election found Tiktok allowed election disinformation ads in Ireland. The ads created as part of the investigation contained fake claims such as that voters needed proof of Covid-19 vaccination.

Misinformation is inaccurate information, while disinformation is false information deliberately intended to mislead. 

If enacted, the Irish law would create a new criminal offence of “making, publication or promotion of several types of information, including electoral process disinformation, and the use of undisclosed bots”.

It would grant the Electoral Commission powers to monitor and investigate the dissemination of misinformation and disinformation online in relation to elections.

Ciarán O’Connor, a researcher in disinformation and online extremism at ISD, explained that the powers promised to the Electoral Commission, if implemented effectively, would compel platforms to remove election misinformation and disinformation when rules are violated.

“It is hoped these powers will be enacted by the time Ireland goes to the polls again this year,” O’Connor said.

Brussels’ assessment of Irish law

Lobby group Technology Ireland, which represents several online platforms, made a detailed submission to the European Commission in October on the Irish law. The firms argued that no EU government should adopt national requirements relating to matters falling within the scope of the EU Digital Services Act, which entered force last year.

The tech firms claimed the Irish law was “more onerous” than the requirements in other EU member states where only the EU rules will apply.

The European Commission has issued a similar rebuke to the government, warning that some parts of the law are “incompatible” with EU rules.

Elements of the Irish law that Brussels has taken issue with include a proposed new Irish requirement for tech firms to notify the Electoral Commission if their platforms may be being used for the purposes of disinformation, or if there may be misinformation on its services. 

Tech firms also believe this provision goes too far, and argue they should only have to take action if they have “actual knowledge” of disinformation or misinformation, or manipulative behaviour on their platforms, rather than having to flag risks.

Amendment being drafted

Officials with the Department of Housing and the Attorney General’s office are now drafting an Electoral Reform (Amendment) Bill which Minister James Browne will table “as soon as possible”, a spokesman for the department said.

Asked whether the legislation will be enacted in time for the Presidential election – due in October – the spokesman said “it is intended that the Electoral Reform (Amendment) Bill will be enacted at the earliest possible opportunity in 2025″.

He added that the Department will “engage further” with the European Commission “if needed” to ensure the new version of the law is in line with EU rules.

It’s understood the government has not yet replied to the European Commission’s detailed letter to Micheál Martin last year.

Technology Ireland said it supports the goals of the Electoral Reform act and the establishment of the independent Electoral Commission.

“However we have also consistently flagged serious inconsistencies between Part 5 of the Act and relevant EU law, and we stated these concerns as part of the [European Commission legislative oversight] process,” it said.

NGO Global Witness has previously stated that the drafting of the EU Digital Services Act – the main EU legislation with which the planned Irish law overlaps and conflicts, and which entered force last year – was subject to “staggering” levels of tech industry lobbying. 

Ever wondered what’s behind misinformation around elections, and how it spreads? Check out our FactCheck Knowledge Bank for more.