Reform Political Advertising replies to the Government Response to the House of Lords Democracy and Digital Technologies Committee Report on Digital Technology and the Resurrection of Trust
1. Context and background
In June 2020, the House of Lords Democracy and Digital Technologies Committee, after more than 18 months of Covid-affected work, evidence from more than 200 sources and leadership from one of the UK’s (and the world’s) most significant media figures Lord Puttnam, published ‘Digital Technology and the Resurrection of Trust’
A primary recommendation from the Report (para 36) stated: ‘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. This regulatory committee should adjudicate breaches of this code.’
Reform Political Advertising (RPA), authors of this note, provided evidence to the House of Lords Committee and strongly supported the recommendation outlined above.
2. The Government Response and RPA’s reaction
The Government’s Response to the Report has recently been published. This note addresses in particular the Government response to the recommendation set out above. Piecemeal below is the government’s verbatim (and in full) position on the recommendation; the italicised type re-states the government view, the regular type the RPA’s response.
Democracy must work for the people and robust debate is fundamental, so reaching out to all of our citizens, and empowering them to engage, only makes our democracy stronger. As part of that, it is important that political parties and other campaigners are able to connect with voters. Having an active online presence is crucial to facilitating engagement with new audiences. However, we also recognise that there are legitimate concerns around the exploitation of online platforms, which is being addressed through our work to counter disinformation and online manipulation.
This government statement above is irrelevant to the House of Lords recommendation, as it fails entirely to address the issue highlighted in the report, which is actually and obviously to do with political advertising, not ‘an online presence.’ This distinction seemed clear enough in the recommendation itself, which refers to ‘advertising’ three times. The government reference above to ‘our work to counter disinformation and online manipulation’, while not explained, we take to mean the Online Harms White paper, already at least four years late and also devoid of any reference to political advertising. Additionally, in the context of the considerable endeavour from the House of Lords team and all those who provided evidence, the Government statement above seems rather patronising.
2.1. An answer to a different question
Transparency around who is promoting material online and how this is targeted is a key part of facilitating scrutiny of political messages and equipping people with the right tools to participate and make informed decisions. The government is committed to promoting transparency around political advertising and is bringing in new rules that will require election material promoted online by a party, candidate or campaigner to explicitly show who is behind it.
Whilst more relevant, this government response again fails to address the key issue, i.e. the inaccuracy of electoral advertising, not identification of its source, nor inaccuracy of such identification. It is entirely clear to RPA and no doubt most others that the Cabinet Office consultation ‘Transparency in digital campaigning’, to which the government response above presumably refers, appears to be, ironically, itself a smokescreen that fails to address voter concerns about the content rather than the source of electoral political advertising.
2.2. Another answer to a different question
However, 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 is not being 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 House of Lords 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.
2.3. The abdication of responsibility
It is a matter for voters to decide whether they consider materials to be ‘accurate’ or not.
It is? So the government recommends that political parties should abdicate responsibility for accuracy in electoral political advertising statements? Does the government hold the same view, for example, for the government’s Coronavirus advertising? And voters should be able to know, for example, when an opinion poll published by a political party is pure invention? When a claim that departure from the EU would mean £350 million p.w. to the NHS? The idea that the voter should decide whether the government or political party statistics in advertising are accurate is either grossly irresponsible or ridiculous. There is no refuge between those positions.
2.4. A vested interest masquerading as a moral principle
It would have a chilling effect on freedom of speech to have political campaigning ‘pre-vetted’ or censored during an election or referendum campaign.
Again, the government description of ’pre-vetting’ or ‘censoring’ political campaigning does not reflect the House of Lords recommendation; nobody has made such proposals, albeit we understand that it is convenient for the government to suggest that they have. We suspect that the above government response might be more truthfully articulated as ‘a chilling effect on political parties’ ability to lie to the electorate in their advertising’.
The whole process would no doubt be subject to vexatious and politically motivated complaints; such contention is why political advertising has not been subject to codes of advertising practice since 1999.
The statement above does not bear much scrutiny, though it is again revealing. First, It is unclear why the process ‘would no doubt be subject to vexatious and politically motivated complaints’ whena process has yet to be established. Second, and leaving aside how a contention can provide a rationale, the demise of the ASA’s involvement in electoral advertising is rather more nuanced than the government appears to understand. The ASA remit at the time was related to the rules on denigration and offence. That role is not being proposed in the House of Lords recommendation, which is rather to ‘restrict fundamentally inaccurate advertising’. Further, the full history of this issue should include the Neill Committee on Standards in Public Life recommendation to parliament in 1999 ‘that political parties should establish a code of best practice in partnership with the advertising industry’. Nothing was done, and that is the reason why political advertising has not been subject to codes of advertising practice since 1999.
Finally, in this context, the government appears to be claiming that the lack of political advertising regulation for the past twenty years is some kind of evidence that it can’t be done. It is entirely clear from the wealth, if that is an appropriate description, of misleading electoral material that has been produced in the following years, that the absence of regulation has provided as a result evidence of why it must be re-established.
Political parties have come to understand that they can say what they like in political advertising and it won’t and can’t be challenged by any kind of independent authority, so they say it. That is a different circumstance to a) media or facilitator or audience challenge in live political debate online and offline, and b) the requirements placed on all other advertising. Does the government really believe that only political parties are capable of ‘vexatious and politically motivated complaint’ and that regulators have no experience of dealing with such matters?
2.5. A response to some final cynicism and patronisation from the government
This matter is best ‘regulated’ by an independent free press, alongside the laws on defamation and the long-standing electoral offence of false statements about a candidate.
By definition, an ‘independent free press’ should not and cannot ‘regulate’ electoral advertising, unless of course it is along the party political lines that the government might desire. Could it possibly be the case, for example, that The Guardian may take a different line on any political statement (in any channel) to The Sun? (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.) As for the ‘laws on defamation and the long-standing electoral offence of false statements about a candidate’, the government might like to cite when these were last deployed against party political advertising, famous for its false statements on just about everything.
We conclude by re-stating the case for the House of Lords recommendation: absence of any kind of regulation of material statements in electoral advertising has led to gross abuse by all political parties; proof if proof were needed from our review here, and from countless other sources over the years.
The government response to the Recommendation from the House of Lords is defensive and evasive; it attempts to paint a clearly reasonable proposal as an attack on free political speech. It is no such thing: this is a simple and evidence-based proposal that in electoral advertising – the only channel that is not ‘regulated’ by formal or informal real time intervention, and political parties the only unregulated advertiser – that there should be some means to prevent the extreme and obvious (if not to the electorate) untruths from happening.
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