December 8, 2017

Correction: A previous version of this story stated the bill attempts to criminalize sharing fake news. In fact, it's aimed at criminalizing the use of bots to spread political misinformation. We have updated the headline and a few sentences in the body as a consequence. Apologies for the missing nuance.

If you use a social media bot to spread political misinformation in Ireland, go directly to jail, do not pass go and possibly pay €10,000.

That’s the spirit of a bill Irish lawmakers proposed this week, which would make using a bot to create 25 or more online presences with the goal of influencing political debate a criminal offense. Actively promoting misinformation on Facebook or Twitter in that way would be punishable by five years in prison or fines of up to €10,000.

Eoin O’Dell, an associate professor of law at Trinity College Dublin, told Poynter in an email that the whole of the bill takes a page from the Honests Ads legislation proposed in the United States Congress. That bill basically aims to make companies follow the same standards for political advertising that apply to broadcast television and radio.

However, by including a section that criminalizes the individual use of bots to spread political messages, Irish lawmakers have gone an extra mile.

“Section 6 goes much further than the U.S. bills, and reflects an unfortunate tendency amongst Irish backbenchers to reach for the criminal law when they don't like the internet,” O’Dell said.

The move is an aggressive approach to a problem — and a concept — that has largely confounded Europe in recent months.

Following contentious elections and referenda in France, Italy and the United Kingdom that were marred by misinformation, the EU Commission has created a high-level group to figure out how to best address fake news online. But experts in the EU and elsewhere are doubtful that it will accomplish anything significant due to governance problems, and proposed solutions focus on issues like hate speech and advertising rather than misinformation.

Cue this week’s bill, which is one of the most aggressive proposals to date in Europe. But does it have a genuine chance of passing or is it just grandstanding?

Eugenia Siapera puts her money on the former.

“I’m not 100 percent sure, but I think it has a good chance of getting through,” said the deputy director of the Institute for Future Media and Journalism at Dublin City University. “We have some of the most draconian laws in terms of defamation.”

Since the Irish parliament has shown willingness to legislate against freedom of expression in the past, she said this new proposed law comes as no surprise. And, if passed, it could backfire.

“This will be perceived from the user as an infringement on their freedom of expression,” she said. “I agree with the implied intention of this legislation to maybe detoxify, maybe safeguard the public sphere from those who have malicious intent, but on the other hand we have to make sure citizens aren’t penalized for their right to freedom of expression.”

There are other problems with the bill. Dan MacGuill, a writer for Snopes and former fact-checker for the Irish news website, told Poynter in an email that the bill is trying to solve a phantom issue.

“The first thing to know here is that — somewhat remarkably — there is no real ‘fake news’ to speak of in Ireland,” he said. “There was a general election in 2016, and an unusually intense one, at that, but we saw none of the deliberate, viral, monetized misinformation or foreign bots and imposter accounts that were a factor in the U.S. elections or Brexit referendum.”

That doesn’t mean Ireland is immune to fake news. James Lawless, the bill’s author, told the Irish Independent that lawmakers need to start taking into account the possibility that the country could become a target for political misinformation in the future. And MacGuill said the upcoming referendum on abortion in Ireland — and the potentially divisive campaign surrounding it — could be a linchpin.

“I think there might be forces at work in Irish society that could mitigate against it,” he said. “But ultimately, the absence of fake news as a presence in the online landscape in Ireland might just be down to the fact that the Irish ‘market,’ as it were, has not yet been considered large or lucrative enough to be worth the effort of an organized campaign of monetized misinformation.”

Still, there’s the possibility that the bill is simply an attempt to score political points. Disagreeing with Siapera, O’Dell said it has little chance of being enacted in its current form due to the fact that it’s a private member's bill introduced by a member of the opposition. MacGuill also said that Lawless name-checked the Strategic Communications Unit, an initiative of Prime Minister Leo Varadkar that’s perceived as a “spin unit” of existing agencies, when promoting the bill, which strengthens the case that the bill has partisan motivations.

Regardless of intent, the proposal’s enforceability is questionable. Anya Schiffrin, director of the Technology, Media and Communications specialization at Columbia University’s School of International and Public Affairs, told Poynter in an email that she has doubts about Ireland’s ability to effectively legislate against bots and misinformation — especially beyond its own borders.

“That looks harsh,” said Schiffrin, who has reported on efforts to regulate fake news in Europe. “(I’m) wondering how they could punish people who are not Irish citizens or living in Ireland.”

It’s a good question — one that lawmakers haven’t answered yet. But even if the final bill does include a plausible enforcement mechanism, Siapera said it’s very existence will harm the mainstream media by taking debate away from Ireland’s harsh defamation laws.

“Journalists are really reticent to pursue investigative reports because of the law. If now fake news is brought into the picture, it’s going to overcomplicate things, in my opinion,” she said. “We have to strike a balance here, but I’m not sure this specific legislation can accomplish that.”

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Daniel Funke is a staff writer covering online misinformation for PolitiFact. He previously reported for Poynter as a fact-checking reporter and a Google News Lab…
Daniel Funke

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