Our submission to the Cabinet Office’s “Transparency in digital campaigning: technical consultation on digital imprints”

Below if our full submission to the Cabinet Office’s consultation:

In section 9, we have included questions to monitor the regulatory burden of this regime on business (for example, technical, administrative, legal and communication costs associated with compliance). Would you like to answer these questions? 

 Yes 

 No 

Proposal 1: Extension of regime

Question 1: Do you agree or disagree with this proposal for the extension of the imprints regime to digital election material? 

 Strongly agree 

 Agree 

 Neither agree nor disagree 

 Disagree 

 Strongly disagree 

Question 2: Please provide any further detail to explain your response here. 

This move is long overdue; we believe that various organisations, ours among them, have been advocating the extension of printed material imprints into online for many years.

Question 3: Do you agree or disagree that this regime will improve the transparency of digital election material? 

 Strongly agree 

 Agree 

 Neither agree nor disagree 

 Disagree 

 Strongly disagree 

Question 4: Please provide any further detail to explain your response here. 

As far as we are aware, the term ‘transparency’ is not defined here. Digital imprints, if correctly executed, will improve transparency in the sense that the source of the material will be more clear in some cases (for much material it is already clear). The content of the material, however, would remain unaffected under these proposals and that is of greater concern to voters, evidence for which statement will follow below. That material frequently lacks transparency when, for example, quoting statistics or presenting opinion polls. Examples here.

Question 5: What do you consider to be the main benefits of the digital imprints proposal? 

See above –  the source of the material will be more clear in some cases.

Question 6: Do you have any other comments on this proposal?

We have two areas of concern about this proposal, the first somewhat ‘technical’, the second rather broader. Both we request should be carefully considered.

1) We suggest that some aspects of the ‘Extension of regime’ paragraphs are unclear and potentially confusing (and perhaps should not be separated in the way that they are from elements of Proposal 2, Material subject to the regime). Below are some extracts from the proposal with our commentary added. The authors of the consultation document may have to forgive some of the more arcane points:

  • Under the proposal, the terms ‘content of websites or equivalent apps; website advertising;’ are used. We suggest it may be appropriate to establish whether such websites are third party or owned?
  • Under Explanation: ‘We want to catch all relevant communication channels, from social media adverts to podcasts, websites and messaging services. a) What is meant by ‘relevant’ communication channels? Relevant to what? b) A ‘social media advert’ is not a channel. c) Per above point, is the term ‘websites’ intended to include owned websites? The intent might be made more clear?
  • We suggest that it may be more productive to maintain focus on the nature of the material rather than the channel which, as is pointed out, will anyway evolve. The key scope decisions should surely not be so much related to channels, but to the role and purpose of the material within the (paid and unpaid) channels?
  • In that context, we note that the election material is defined as ‘material which can reasonably be regarded as intended to promote or procure the electoral success of registered political parties and candidates or material that relates wholly or mainly to a referendum’. Additionally, under footnote 8, ‘regulated activity’ is defined as activity ‘that can reasonably be regarded as intended to influence voters.’
  • We dwell on what might seem to be pedantic points because of the way in which third party campaigning appears to operate. Much significant material is not directly connected with ‘the procurement of electoral success…’ etc. The terms used to define regulated activity seem more appropriate and are consistent with, incidentally, the terms used in the ASA definition in this context.
  • In the same context of third party campaigning, the definitions of ‘paid material’ and ‘unpaid or organic material’, particularly the latter, are inadequate in our view. Confining unpaid material to that which is ‘shared to a community such as a campaigner’s ‘friends’ or ‘followers’’ opens some substantial doors. (It is anyway not the material that is unpaid, but the channel/ medium.)
  • Equally, the requirement that the registration of third party campaigners is predicated on a spend of over £20,000 seems somewhat arbitrary and not necessarily sensitive to the dynamics in social media. Level of spend as the distinction between registered and unregistered third party campaigners does not recognise how some campaigners can reach significant audiences via a post on Instagram with nil spend and a £20k spend from other campaigners does not ripple the pool. It is anyway not what they spend that matters so much to voters, but what they say and how they say it, of which more later. 
  • This aspect of scope is also considered under Proposal 2, Material subject to the regime. Questions 15 and 16 ask for views on ‘issue-based advertising from third party organisations or campaign groups.’ We have answered the question as best we can, but, again, it is not clear how such groups differ, if at all, from those identified in this Proposal 1, and how ‘issue-based’ advertising appears to place such advertising in a ‘wider’ context. 
  • The more malign influences that have been the subject of past and recent media speculation and parliamentary debate do not seem to be addressed specifically and are of concern to voters. Point 25 under Policy Objectives states: We are bringing forward new legislation to provide the security services and law enforcement agencies with the tools they need to disrupt hostile state activity.’ It is not clear where these plans connect with the ‘Transparency in digital campaigning’ proposals and the extent to which the existing regime (in this context, the Electoral Commission) is required to address or review hostile state activity and how, for example, obtaining a registration and imprint under false pretenses is precluded. 
  • The central and most significant issues from the above are those related to definitions within the planned scope of this extension. On the basis of the analysis/ commentary above, we suggest that there may be room for some tightening of definitions and a consideration of whether plans take into full account the nature of some aspects of campaigning and its potential (low cost) impact?

2) We regard the proposal as necessary but insufficient and we are concerned that the Cabinet Office/ government is using the introduction of digital imprints as a means by which they can continue to avoid the pressing need for regulation of material (as in quantifiable) claims in electoral advertising, together with other reforms that have been identified.

Under point 21 of Policy objectives the cabinet Office states: ‘The intention is not to create a regime which will police the accuracy or truthfulness of content. Policy or political arguments which can be rebutted by rival campaigners or an independent free press as part of the normal course of political debate are not regulated. The Government does not support the creation of a new body to regulate the content of political statements.’ We address this point below, as it is fallacious, and germane to the case that follows.

  • The statement uses language that is redolent of the Government’s response to the House of Lords Select Committee Report ‘Digital Technology and the Resurrection of Trust’. Deliberately or otherwise, that response, and point 21 above, fails even to address properly the Select Committee’s recommendation under para 36 that The relevant experts in the ASA, the Electoral Commission, Ofcom and the UK Statistics Authority should co-operate through a regulatory committee on political advertising. Political parties should work with these regulators to develop a code of practice for political advertising, along with appropriate sanctions, that restricts fundamentally inaccurate advertising during a parliamentary or mayoral election, or referendum.’
  • The recommendation is absolutely clear that it seeks a process that ‘restricts fundamentally inaccurate advertising.’ The Government’s response, and the Cabinet Office’s point 21 above, positions the idea of regulation of material claims in electoral advertising as a regulation of ‘political statements’ and supposes that those can be ‘rebutted by rival campaigners or an independent free press.’ The Cabinet office will be aware that  ‘rival campaigners’, or any other mechanism currently available, cannot in real time rebut advertising, and that the ‘independent free press’ aligns itself at election times:  Electoral Commission research in 2019 found that when people were asked to prioritise their concerns about the election from a list of issues, 67% of people said ‘media bias’ was a problem. 
  • This government/ Cabinet Office defense of the ongoing exploitation and abuse of the only, and arguably the most important, unregulated space in advertising might at least provide voters with the dignity of some solidity in their defense, or perhaps it is simply indefensible? 

We know that voters consider the regulation of the content of electoral material to be more important than identification of it source. This month, October 2020, we fielded proprietary research via YouGov specifically for the purposes of informing this consultation, which revealed the following:

Q: ‘We would like you to think about the adverts that political parties put out at elections. This could be posters, adverts in newspapers or advertisements online or on social media. Thinking about the rules and guidelines that might govern such advertisements, how important do you think it is that…

 …it is clear which political party is responsible for an advert?’     %…that political parties’ adverts do not make false or misleading claims?’ %
Very important 6477
Fairly important178
TOTAL IMPORTANT8185
Not very important53
Not important at all32
TOTAL NOT IMPORTANT85
Don’t Know 127

This research is consistent with findings of a study we commissioned in December 2019, which found that 87% of voters thought that ‘it should be a legal requirement that factual claims in political adverts must be accurate.’ We conducted a very similar study in December 2018, when the level was 83%.

Additionally, Electoral Commission research ‘Political Finance Regulation and Digital Campaigning: A Public Perspective’ from March 2018[1]  found that, inter alia:

‘As with traditional campaign materials, identifying a trustworthy source was important in establishing the credibility of a message. However, although identifying a trusted source helped to reassure participants that campaign material was bona fide, this did not always mean that they believed the information contained in the message. This is because there is a distrust of campaign messages and statements made by politicians more generally.’

And

‘The core concern for participants throughout the research was the believability and trustworthiness of thecontent they consumed during election campaigns.’ (note: emphasis per the research document).

Graphically:

The above evidence is overwhelming and its sources impeccable: this proposal is inadequate as it stands and should not be allowed to substitute for a proper response to voter demands; identifying the liar does not mitigate the lie.

Finally, we have lodged an FOI request with the Electoral Commission for the raw data behind their post 2019 election research to which you refer under point 8 of Policy background, as there is evidence from some of the available summaries to suggest that this research also found that voters’ concerns were more associated with content than the identification of its source. (‘Misleading content and presentation techniques are undermining voters’ trust in election campaigns.’) We had not received a reply at the time of writing, though the period concerned remains within the official response time. 

Proposal 2: Material subject to the regime

Question 7: Do you agree or disagree that the regime should be extended to registered political parties, registered third party campaigners, candidates, holders of elected office and registered referendum campaigners – both paid and unpaid (or ‘organic’) material? 

 Strongly agree (in principle, subject to the caveats below)

 Agree 

 Neither agree nor disagree 

 Disagree 

 Strongly disagree

Question 8: Please provide any further detail to explain your response here.

While we are, per our ‘strong agreement’ statement above, in favour of this extension, we have concerns about the definitions, and therefore scope, as provided in the consultation document. By way of brief explanation and related to the points made above, it is unclear to us why “Unregistered third party campaigners” are defined according to their level of spend, when significant activity is often ‘free’, or rather more formally ‘Unpaid’, ‘Owned’ or ‘Earned.’ Per above points, surely the issue here is the identification of the type of material that ‘qualifies’ for registration by its authors, unless they are ‘members of the public expressing their personal political views in a private capacity.’

We are bemused by the second paragraph under ‘Material subject to the regime.’ To what form of ‘digital content’ is the first sentence referring?

Question 9: Do you agree or disagree that the regime should be extended to prospective office holders (both paid and unpaid, or ‘organic’, material)? 

 Strongly agree 

 Agree 

 Neither agree nor disagree 

 Disagree 

 Strongly disagree 

Question 10: Please provide any further detail to explain your response here.

See earlier comments regarding definitions and scope. 

Question 11: Do you agree or disagree that the regime should be extended to unregistered third party campaigners promoting paid material only? 

 Strongly agree 

 Agree

 Neither agree nor disagree 

 Disagree 

 Strongly disagree 

Question 12: Please provide any further detail to explain your response here. 

See comments above re definitions. Additionally, there is no explanation as to why unpaid material from unregistered third party campaigners is exempted, and we would have thought it essential to cover this base as much of the material from this source would likely be aimed at this space. Coverage/ impact is no longer a function of spend alone: again, we suggest that the scope might be more to do with the nature of the material rather than the extent of the budget behind it. 

Unpaid material of the type described above is in remit in (most) advertising regulation managed by the ASA, provided that it meets the definition of ‘advertising’, the equivalent in this case being ‘material which can reasonably be regarded as intended to promote or procure the electoral success of registered political parties and candidates or material that relates wholly or mainly to a referendum’, (albeit we have commented on this definition).

Question 13: Do you agree or disagree with the distinction made in this proposal between paid and unpaid material? 

 Strongly agree 

 Agree 

 Neither agree nor disagree 

 Disagree 

 Strongly disagree 

Question 14: Please provide any further detail to explain your response here. 

We’re not sure this question is clear. We agree that there should be a distinction, but as we have already suggested above, the definitions are in our view inadequate. So the distinctions as provided we do not agree with, and as we have also said we regard the ‘real’ test (the material) as being the first. We also suggest that the drafting under ‘Explanation’ might be enhanced; we’re not sure, for example, whether the description ‘anyone not publishing election material’ is referring to those who might be publishing ‘wider online political advertising’ or other forms of political advertising activity or none at all? We are also uncertain about the consistent use of the term ‘publish’ as it appears to be capable of interpretation as including ‘publishers’, such as third party websites. Does the Cabinet Office intend this? 

Question 15: Do you agree or disagree that the regime should be expanded beyond what is considered election material (as set out in this proposal), to wider online political advertising? 

● Strongly agree 

● Agree 

● Neither agree nor disagree 

● Disagree 

● Strongly disagree 

Question 16: Please provide any further detail to explain your response here. 

We take the definition of ‘wider online political advertising’ to be that expressed under point 24: ‘…for example issue-based advertising from third party organisations or campaign groups. We welcome feedback on whether digital imprints should be expanded beyond what is considered election material, to wider online political advertising.

The question is very challenging, as the definition is loose and the issues arising are complex and significant. (We have earlier indicated that consideration might be given to the definition of ‘election material’ in the light of the development of campaigning, and there does not appear to be a definition of ‘issue-based’ advertising, or why ‘election material’ wouldn’t be ‘issue-based’ advertising?)  

Notwithstanding the above, it is our view that it would not be appropriate to require digital imprints from the organisations and material in the spirit of the identification above. On the one hand, the implication is that such requirement implies a very heavy regulatory hand, and on the other some kind of endorsement of these organisations. 

The real issue is anyway not so much the formal identification of these organisations and groups but what they say in their campaigning, as it is the content that will or may influence voters. We suspect that such organisations as identified above, knowing as they will that there is no regulation of the content of electoral advertising, would happily incorporate an imprint in the event of its requirement, thus ‘sanctioning’ the organisation and by implication its (unregulated) messaging, which may imply whether there should be consideration of whether such organisations would be ‘entitled’ to an imprint if they applied for one?

That is the deep and central flaw of the proposals in this consultation. It is simply not possible to address the scope of the imprint extension proposals and the maelstrom of the digital world without recognizing that who they are is inevitably and directly connected with what they say. Indeed, what they say often identifies who they are. It is only the combination of regulatory measures – identification and material content – that will deliver to voters and to democracy. 

Question 17: Do you agree or disagree that the digital imprints rules should apply to all forms of elections and referendums (beyond those already listed in the proposal and excluding devolved elections and referendums)? 

 Strongly agree 

 Agree 

 Neither agree nor disagree 

 Disagree 

 Strongly disagree 

Question 18: Please provide any further detail to explain your response here. 

We don’t understand the question. The definitions under ‘the regime is intended to cover’ seemed right. We don’t think we’re best placed to comment on territorial application; our view is only that there should be consistency across the U.K. wherever possible and reasonable, as the boundaries to which the proposals refer do not apply in the online advertising environment.

Question 19: Do you have any other comments on this proposal? 

We would only like to re-iterate that as well as our specific responses in terms of agreements or otherwise, and our particular issue on the material content of advertising, our principal concerns or issues also relate to the structure and clarity of the proposal and the accuracy of some of the drafting of its individual components.

Proposal 3: Details on the imprint

Question 20: Do you agree or disagree with the proposal on the details to be contained within the imprint i.e. the name and address of the promoter of the material and the name and address of any person on behalf of whom the material is being published? 

 Strongly agree 

 Agree 

 Neither agree nor disagree 

 Disagree 

 Strongly disagree 

Question 21: Please provide any further detail to explain your response here. 

Before we respond specifically, it may be appropriate to establish some principles/ objectives for the approach to identification of election material. We suggest:

  1. Such identification should serve the voter, who wants to know who is responsible for the content of the material and how, if necessary, they might easily be reached
  2. Identification per above should be as simple, clear and consistent as possible

It is unclear to us why it is necessary to require in all cases the name and address of the promoter of the material and the name and address of any person on behalf of whom the material is being published. We are aware that this is the requirement for printed material. 

We struggle to understand the value of a name and address for both the ‘promoter’ and the name and address of the person on whose behalf the material is published. The requirement for two sets of addresses in an online environment would provide real challenges in layout in much digital advertising space, and the easy excuse for advertisers to revert to the fallback link. We also struggle to understand why specifically an address is required versus an email address, required to be properly attended and fully secure. Additionally, a PO Box address is not a simple real-time solution: is it really believed that people are more likely to write to a PO Box address versus sending an email? Finally, from our own experience, we can confirm that response to issues we raised with all political parties in the 2019 General Election was, with a single exception, non-existent.

Question 22: Do you have any other comments on this proposal? 

A simple request – that what should be avoided at all costs is a requirement for a mass of (necessarily) small ‘spider’ type at the bottom of an ad. Voters hate it, agencies hate it, and advertisers hate it.  

We also note that there are no proposals for a minimum font size, as is the case for example in a number of European countries where ‘responsibility messages’ are required in e.g. alcohol or gambling advertising. ‘Abuse by hiding’ of the imprint requirement in printed material was considerable in the 2019 General Election.

Proposal 4: Location of the imprint

Question 23: Do you agree or disagree with the proposal for the location of the imprint – that the imprint must be located as part of the material where it is practical to do so and where it is not practical, must be accessible from the material? 

 Strongly agree 

 Agree 

 Neither agree nor disagree 

 Disagree 

 Strongly disagree 

Question 24: Please provide any further detail to explain your response here. 

Question 25: How do you think digital platforms can facilitate campaigners to include imprints? 

By telling them what to do – providing a simple set of digital material and instructions/ guidance prepared by the Electoral Commission – and refusing to publish material that doesn’t carry an imprint or link fallback. There are already, of course, some mechanisms in place in that regard. 

Question 26: Do you have any other comments on this proposal? 

The proposal is insufficiently clear on, and demanding of, the requirements for different types of digital material. We recognize that the consultation document requires that ‘we want the law to focus on platform-neutral solutions to ensure that it is future-proofed for rapid changes in technology. This means that the imprint will apply to any kind of digital election material on any platform’, but we predict that this very ‘loose’ brief will lead to mass bail-out into links. If that is what the Cabinet Office prefers, so be it, and that result would probably be preferential to poor executions of very detailed and specific requirements to include the kitchen sink (or two kitchen sinks) in all material.

Proposal 5: Appearance of the imprint

Question 27: Do you agree or disagree with the proposal for what the imprint should look like – permanent, embedded and visible/audible, clearly readable/legible/audible and replicable? 

 Strongly agree 

 Agree 

 Neither agree nor disagree 

 Disagree 

 Strongly disagree 

Question 28: Please provide any further detail to explain your response here. 

The following does not ‘explain’ our response exactly. Proposal 5 states ‘The promoter of the material is responsible for ensuring that the imprint is…’ etc. As far as we can establish, the term ‘promoter’ is not defined under this proposal (but is later, in our view inadequately). Additionally, the proposal seems light on executional guidance.

Question 29: What would campaigners need from digital platforms in order to comply with the rules? 

Simple, accessible help either to access the imprint itself in appropriate form or to a source where it can be accessed. 

Question 30: Do you have any other comments on this proposal? 

It would be helpful to include a ‘dummy’ example/ template in various forms. We assume there are anyway plans to do so in the next stages.

Proposal 6: Re-publishing of election material

Question 31: Do you agree or disagree with the proposal for the re-publishing or ‘sharing’ of material? 

 Strongly agree 

 Agree 

 Neither agree nor disagree 

 Disagree 

 Strongly disagree 

Question 32: Please provide any further detail to explain your response here. 

We regard the proposal as reasonable, albeit the drafting allows too much ‘room’ –  the proposal does not remind of the imprint requirements, and the term ‘campaigner’ is not defined in this context. It would not, therefore, be clear as to who should do what exactly.

Question 33: Do you have any other comments on this proposal? 

There is no mention of data processing rules in the context of sharing material. This may not matter in this context, but might do so when final ‘rules’ are drafted.

Proposal 7: Territoriality

Question 34: Do you agree or disagree with the proposal that the regime will apply to all election material regardless of where it has been promoted from? 

 Strongly agree 

 Agree 

 Neither agree nor disagree 

 Disagree 

 Strongly disagree 

Question 35: Please provide any further detail to explain your response here. 

Question 36: Do you have any other comments on this proposal? 

We are again concerned about some aspects of the drafting.

Section 8: Enforcement

Question 37: Do you agree or disagree that the relevant authorities are in a position to effectively enforce digital imprints? 

 Strongly agree 

 Agree 

 Neither agree nor disagree 

 Disagree 

 Strongly disagree 

Question 38: Please provide any further detail to explain your response here. 

We regard the Election Commission as well placed effectively to enforce the correct application of digital imprints. We would seek, however, some reassurance that they have a productive working relationship with key social media platforms in particular. 

Question 39: Do you agree or disagree that civil sanctioning powers should be extended for use in relation to offences committed concerning election material in support of candidates? 

 Strongly agree 

 Agree 

 Neither agree nor disagree 

 Disagree 

 Strongly disagree 

Question 40: Please provide any further detail to explain your response here. 

None

Question 41: Do you have any further comments on this section? 

No

…………………………………………………


[1] (Note: this GFK research is available on the Electoral Commission website and therefore in the public domain; clearly we have extracted elements of the research that support our specific case, but we are very confident that we are not misrepresenting the full study)

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