Until 1999, electoral advertising was subject to some rules in the U.K. Advertising Codes. Following the 1997 General Election, the ASA made a decision to exclude political advertising from its remit ‘because of several factors that risked bringing advertising regulation into disrepute’. In other words, one of the most highly regarded regulators in the world ‘retired hurt‘ more than twenty years ago.
Since that time, and with huge growth in activity online, all political parties have taken advantage of a regulation-free environment to deliver advertising that is so grossly misleading as to be laughable.
Except it’s not funny, because it’s our vote that’s being influenced.
Information, misinformation and disinformation
The context in which we operate is that of communication by political parties in an election environment. This is a setting that is surrounded by high profile, sensitive, current and dangerous influences, sitting within seismic change in the use of technology in communications and subject to malign international influence. (Aside from that, it’s straightforward enough). By way of example, the following are some of the ‘headlines’ that decorate the dissemination of political information:
The introduction by Facebook of “transparency features” in political advertising
The warning from Twitter on a President Trump tweet
The banning by Twitter of electoral political advertising in the UK
The government’s response to the Intelligence and Security Committee’s 2020 Russia Report
DCMS Disinformation and ‘fake news’ final report
The House of Lords Democracy and Digital Technologies Committee: Digital Technology and the Resurrection of Trust June 2020
This issue is high profile nationally and internationally, of considerable importance to U.K. voters and damaging and frustrating to the advertising industry. Our goal may be particular, but it sits four-square within a huge context: the validity of ‘public’ information in a democracy, and especially in an election context, is paramount and if it isn’t one of the most significant and urgent issues in front of politicians, one is inclined to wonder why that might be the case.
Is the Government on top of it or on top of us?
In the course of the past few years, Government has recognised the significance of some of the more malign or potentially malign influences on the democratic process. The most notable result in this context is the DCMS Disinformation and Fake News report referenced above, which states: ‘Government should look at the ways in which the UK law should define digital campaigning, including having agreed definitions of what constitutes online political advertising…. There also needs to be an acknowledgement of the role and power of unpaid campaigns and Facebook Groups that influence elections and referendums…’
The House of Lords’ June 2020 report, also referenced above, went further: the Select Committee, to whom we provided evidence, recommended (para 36) the establishment of a regulatory committee on political advertising. This was a significant step towards our goal, especially as it came shortly after the news that the ASA is ready to help.
The Online Harms white paper makes no reference to political advertising regulation, as might be expected. The proposed independent regulator ‘will not be responsible for policing truth and accuracy online.’ (Para 36). The Government’s response to the House of Lords report included some evasive and cynical reaction: …’policy or political arguments – both online and offline – which can be rebutted by rival campaigners as part of the normal course of political debate are not regulated and the government does not support such regulation.’
The government was not asked to support ‘such regulation’ when that is supposedly to do with ‘policy or political arguments both online and offline.’ The recommendation does not propose that such arguments are regulated. Indeed, we can be reasonably certain that the authors of the report, politicians themselves, would be alarmed by the idea that political debate of the type outlined in the government response should be regulated. The recommendation relates to political advertising, not political debate, though of course we understand that the Government is being deliberately obtuse in its failure to distinguish between the two. Our full reaction to the Government’s response is here.
Arguably the most extreme and certainly the most notorious recent example of misleading advertising in an election/ referendum context – the £350 million ‘Brexit bus’ claim – was delivered under the same regime as is now running the country. We have no view on the outcome of the referendum or its consequences; we are absolutely clear, however, that if this advertising made any contribution to that outcome then we are ashamed for advertising itself, for this example’s creators and sponsors, and above all for its lack of effective regulation. In its favour, there can be no better example of why electoral/ referendum advertising must be regulated.
In December of 2019, we published Illegal, Indecent, Dishonest and untruthful; how political advertising in the 2019 General Election let us down.
The document sets out examples of grossly misleading advertising from all political parties; such advertising, if expressed with similar disregard for the facts by a non-political advertiser, would likely be the subject of competitor litigation, and certainly suffer a ban from the ASA.
We need to point out that our platform is not some kind of precious ‘lobby group whinge.’ In the same month as we published the report referenced above, we also conducted YouGov research which found that 87% of voters think that ‘it should be a legal requirement that factual claims in political adverts must be accurate.’ We also know form anecdotal evidence and frequent contact with members of the public that this political party behaviour is hugely frustrating to voters, and in some cases, actually distressing when there is no recourse whatsoever against political leaders who lie in advertising.
*Subject to Terms and Conditions
We are aware that we are on sensitive ground when we ask political parties to be subject to regulation in their campaigns. We suspect, as the Government indicated in its response to the House of Lords report referenced above, that free speech principles will be considered to be at stake and ‘hell hath no fury like a vested interest masquerading as a moral principle.’ We should make our position on political statements in paid and unpaid advertising absolutely clear, therefore.
(Briefly and for the record: ‘paid’ advertising is the more conventional/ established form where marketers or their agents pay the owner of ad space in exchange for use of that space; unpaid is advertising (as separately defined and distinct from ‘editorial’ or information such as press releases) in owned media, or any channel that a brand controls and in which it does not have to pay for messages. Channels include blogs, social networks including Twitter, and marketers’ own websites. These spaces are within ASA remit for most forms of advertising but not, of course, for electoral advertising).
We contend that material claims in electoral advertising should be regulated at minimum in paid advertising and that serious consideration should be given to including unpaid advertising in scope. Many of the transgressions we have reviewed occur in these spaces, and left unregulated there will likely occur many more, as they will become a safe haven for the promulgation of misleading and unsubstantiated claims. As we have already pointed out, all other advertisers are regulated in unpaid spaces.
Back to Free (as opposed to paid and unpaid) Speech. First, the Human Rights Act 1998 provides ‘everyone has the right to freedom of expression’ in the UK. The law states, however, that this freedom ‘may be subject to formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society’.
All sections of society are subject to those ‘formalities, conditions, restrictions or penalties’, or by social, cultural or political pressures, as we set out (non-exhaustively) below:
|Individuals||The law. Public order Act 1986, Communications Act 2003, Terrorism act 2006||Social and cultural mores; social media. Law Commission hate crime review|
|Press||IPSO, the law (as above)||Parliament, readers, social media|
|TV and Radio||Ofcom, the law||Parliament, viewers and listeners|
|Social Media||The law||Parliament, DCMS, Online Harms white paper|
|Parliament||The Speaker, Committee on Standards in Public life||The media, lobby groups|
|Advertisers||The law, the ASA||Parliament, consumers, social media (vis. Pepsi)|
|Electoral advertising||Representation of the People Act 1983; prohibited to make or publish false statements about election candidates. Police regulate Identification required in print media; electronic media out to consultation||EC, HoL, BBC Reality Check, Full Fact, RPA, Voters|
The simple point we are making is that everyone is regulated everywhere – except material claims in electoral advertising, where political parties seem to demonstrate their commitment to free speech by taking liberties with it. ’Pressures’ are simply ignored, waved away, or rebutted in the full knowledge that the damage has already been done.
There is an important distinction to be made between regular political discourse or ‘live’ debate and statements in advertising. The former is almost inevitably in the presence of a moderator or commentator of some kind. Politicians are naturally wary of ‘terminological inexactitudes’ when in the presence of heavyweight political commentators. Often, opposing candidates will also be present to put a counter view. If any material statement is in, for example, the editorial pages of a newspaper, it will similarly be surrounded by commentary, or subject to the editor’s metaphorical red pen. Advertising is an island, complete in its homogeneity and impregnability, unchallenged and in this case unchallengeable. Put simply and bluntly, the only place that politicians can lie without fear of challenge is in advertising. So they lie in advertising.
Over the past several years, we have staked out our ground. Practically alone, we maintained that electoral political advertising could and should be regulated, and that it is ridiculous that it isn’t. We are making headway.
We are not proposing that ‘policy or political arguments’ (the term used by the Cabinet Office) debate should be further, i.e. beyond the law, regulated in paid and unpaid advertising. Our premise is simply that electoral political advertising should be required to observe the same standards as all other advertising in the matter of material claims that can be substantiated. We proposed these terms earlier in our December 2019 review, which also sets out how those claims are assessed under the CAP Codes.
Further, we are proposing that a set of ‘advocacy principles’, such as those that operate in the regulation of electoral political advertising in New Zealand, should be established as part of a Code of Practice developed with political parties. Such principles would clarify and define the distinctions between opinion and factual information, where these may not be obvious.
So we need a ‘Code of Practice’ to be agreed with political parties. This recommendation is not exactly novel and has been made by more influential figures than ourselves: an October 2013 Report of the All-Party Parliamentary Inquiry Into electoral conduct references the work of The Committee for Standards in Public Life (The Neill Committee) which recommended that ‘the political parties seek to agree a code of best practice in partnership with the advertising industry to apply to the non-broadcast media. The enforceability of such a Code by, for example, the Electoral Commission was questioned by the Government in their response to the Committee but it stated its intention to explore whether existing or ad hoc bodies could oversee it and offered to broker cross-party agreement.’
This particular section of the report then concludes: ‘There appears to have been no action taken.’
A Code should be drafted and administered by:
There should be an independent chair and advice and input from the major social media platforms, the Advertising Association, ISBA, the IPA AND the UK Statistics Authority. A small group from the above and aforementioned will form a team during election periods.
There will be no pre-clearance system; the remit will be confined to ‘material claims capable of substantiation in paid and unpaid electoral advertising.
We should recognise that self-regulatory systems exist successfully right around the world and the best of examples is found at the ASA. We are also confident that the very existence of such an organisation would in of itself prevent much of what currently occurs. The critical component for progress is political will, hopefully founded on the government’s recognition that the great majority of voters and many commentators feel strongly that political parties are exploiting an absence of regulation in order to deliver a plethora of empty promises, shoddy appeals and downright lies.