Fears over agency’s ability to enforce campaign laws on political advertising originating overseas • Help us monitor political advertising in Australia

This article is more than 2 years old

This article is more than 2 years old

Australia’s electoral commission was left seemingly powerless to crack down on a Panama-hosted website publishing homophobic material during the same-sex marriage debate, an episode that has raised fears about its ability to enforce campaign laws on political advertising originating abroad.

The rules governing political advertising in Australia were significantly broadened as of March to require websites and social media content to be properly authorised, mirroring the temporary arrangements in place for last year’s postal survey.

Efforts to root out unauthorised political advertising have assumed greater importance following the 2016 US presidential election, when Russian operatives used about 3,000 Facebook ads in a concerted campaign of interference.

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But an email seen by Guardian Australia highlights the difficult position the Australian Electoral Commission (AEC) is faced with when complaints are made about unauthorised online advertising that originates from abroad, particularly when the author cannot be identified or refuses to comply with the AEC’s requests.



During the same-sex marriage debate last year, the commission was asked to investigate a website, registered in Panama and hosted in the US, that was distributing homophobic material to support the no campaign.

The website lacked any authorisation, leaving the Australian public with no ability to work out who had paid for and produced the material.

In September 2017 Paul Pirani, the chief legal officer of the AEC, responded to the complaint and said that while the commission would try to investigate, the offshore location of the website would cause difficulty.



“[The website] appears to be registered in Panama and hosted on a server in the US,” he said.

“While I will certainly continue to make inquiries, I fear that the tools available to the AEC may not be sufficient to enable remedial action to be taken to address the lack of authorisation details.”

The website still did not have the correct authorisation details this week.

The AEC’s powers are limited when dealing with online advertising hosted abroad.

A spokesman told Guardian Australia that it “has no enforcement or regulatory powers outside Australia”, and that identifying the individual or group behind the ad was often difficult.

“One of the issues raised is the difficulty in identifying the persons responsible for a particular communication or posting,” he said.

The AEC can only ensure that ads are properly authorised, and cannot itself take action on grounds of discrimination or vilification.



Guardian Australia has found further examples of advertising that appears to contravene the new laws.



A Facebook page called Shortens Franking Credit Changes has put out a number of Facebook ads (first identified on Twitter) attacking Labor’s policy on franking credits apparently without any authorisation details.

Some of the ads – which have since been removed – linked to a website hosted in the US and registered in American Samoa, and the domain name registration information is not available. The website contains a number of other criticisms of Labor policy, and also appears not to have any authorisation details.

After Guardian Australia highlighted the page to the AEC, it contacted the owner. The owner has since taken down the ads and added a full disclosure of his identity.

The AEC does not have the resources to proactively trawl through Facebook searching for non-compliant political advertising, but does act when possible breaches are brought to its attention, as in the case of the Shortens Franking Credit Changes page.

The commission said it was generally successful in getting the proper authorisation where it was able to identify those responsible for a particular communication.



“Where the AEC has been able to identify the persons responsible for a particular communication or posting, we have been able to successfully have either the communication withdrawn from publication or the required authorisation details included in future publications,” the spokesman said.

That accords with evidence to the Senate inquiry on the postal survey, which suggested the commission had a “nearly 100% success rate in having authorisation details added” when it was able to identify the owner of a particular website.

Macquarie University political scientist Glenn Kefford said the lack of proper authorisations on political messaging posed dangers to the “quality and functioning of a liberal democracy”.

“If political advertising has clear authorisation labels, factually incorrect information can be called out by political opponents, civil society and, most importantly, the media,” he said.

“With a clear authorisation label, ‘truth in advertising’ provisions could potentially be included in electoral law and enforced and importantly, those spreading malicious or misleading information can be held to account.”

The Senate inquiry heard there were significant difficulties in tracking down the disparate groups responsible for advertising.

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Pirani said the backers of such ads were often not cogent entities. “Unlike dealing with a political party where I’ve got a registered office and contact details et cetera, to identify and locate some of the disparate groups out there campaigning is extremely difficult,” he told the inquiry.

Kefford said research suggested that online advertising was not overly effective at changing the minds of voters. He said fears about Facebook as an advertising platform were largely due to its ability to micro-target voters. But this, he said, presupposed political parties were sophisticated enough to make good use of the technology.

“The academic literature is clear, the most persuasive techniques remain the most old-fashioned: face-to-face conversations,” he said. “There are important questions which remain about the effect on mobilisation or demobilisation, but Australia’s system of compulsory voting insulates us, at least partially, from this.”

• This reporting is supported by the Susan McKinnon Foundation through the Guardian Civic Journalism Trust