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Is it a bird? Is it a plane? Is it the NHS? Or is it the Tories?

Rae Burdon



First, our thanks to those who kindly sent in the ‘NHS survey’ conducted in the South Cambridgeshire parliamentary constituency under the auspices of the Conservative party candidate.

Before we set out our response, we should explain how we assess electoral material. We do so using three elements: 1) the ASA’s rules, largely but not exclusively Section 3 on misleadingness, and their related adjudications or rulings 2) the law, principally the Representation of the People Act (RPA) 1983 and 3) our combined experience of well over 100 years in advertising (there’s more than one of us, you might be pleased to know). Into that mix, we are inclined to throw in a hefty dollop of cynicism, born of too many years of reviewing electoral communications whose general standard is, sadly, embarrassing at best and disgraceful at times.

To those who may not know, content in these communications is, to all intents and purposes, unregulated. There are some (inadequate) ID requirements from the Elections Act and RPA, the latter of which also prohibits ‘false statement of fact in relation to the candidate’s personal character or conduct.’

Our own focus is on factual accuracy – we don’t review policy statements or opinion and we don’t think those should be regulated.

At last, to the case at hand. The leaflet itself is linked earlier. Complaints have largely been related to the ‘passing off’ of the candidate/ party as some kind of official NHS affiliation, as the design echoes NHS graphics. Further, the candidate is accused of illegal data gathering. So there are two issues: a) whether the identity of the advertiser is sufficiently clear under the rules and b) whether the use of data is legally compliant.

For context, this is a questionnaire and therefore requires of the reader, if they decide to complete it, close scrutiny. The questionnaire carries, reasonably prominently, the name of the parliamentary candidate. The political party (not required under ID rules) can be found later, in the privacy notice. The presentation of the leaflet in NHS colours is only misleading, in our view, if the actual advertiser’s identity is not (eventually) communicated.

On the alleged illegal use of data, GDPR requirements include ‘purpose limitation’. The privacy notice in the leaflet appears to note a very broad interpretation of purpose. We are in touch with the ICO on that particular issue in the context of their ‘Guidance for the use of personal data in political campaigning.’

Our conclusion is that this is a close call, but in our judgement the communication delivers ID requirements just on the right side of rules that are anyway inadequate. We will report back ICO views.

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