5. Enforcing the rules
- Each of the UK's governments and legislatures should increase our powers to obtain information outside of an investigation.
- Each of the UK's governments and legislatures should increase our powers for information sharing with other agencies when it is in the public interest.
- Each of the UK's governments should increase the maximum fine we can sanction campaigners for breaking the rules.
- Each of the UK's governments and legislatures should give us powers to investigate and sanction candidates for breaking the candidate rules.
- Social media companies should work with us to improve their policies on campaign material and advertising for elections and referendums in the UK.
UK electoral law sets requirements relating to funding and spending for election and referendum campaigns. There are criminal offences for not complying with the rules. As the regulator of political finance, we have powers to investigate breaches of the rules. We can impose a monetary penalty known as a civil sanction. The police can also investigate suspected breaches of the rules and refer cases for criminal prosecution in a court.
Increasing our powers to obtain information
Digital campaigning materials can be distributed instantaneously to large target audiences. It can have an immediate effect on an election or referendum campaign. It is therefore important that we are able to look into concerns about a campaign. We want to do this in ‘real-time’, as well as after a vote.
We have wide powers to get evidence when we are investigating whether an offence has already been committed. Most of the offences we can investigate are about reporting to us. This can reveal issues about a campaigner’s spending or funding during a campaign. By the time we receive the reports, the campaign has been over for months. Our preferred approach is to prevent the rules being broken, or to put a matter right as quickly as possible. Our powers are more limited where we need to make enquiries outside of an investigation.
We may need to request information from suppliers of digital campaigning tools about the identity of the originating account. Or we may request that parties and campaigners provide rapid answers to our questions about the digital activity. Our statutory powers to compel the provision of evidence cover all organisations and individuals that are regulated under the law – including registered campaigners. However, our powers outside an investigation only cover material related to income and expenditure. Our powers do not extend to third parties such as suppliers of digital platforms.
We recommend that our powers to compel the provision of documents, information and explanation outside of an investigation should be extended. We should have the power to request information from any person who may hold relevant material. The Information Commissioner recently asked for similar powers and the UK Parliament gave them to her organisation.
If we had this power, we could make suppliers of digital services or platforms provide relevant information that they hold. This change would make things faster when we assess concerns that we identify or when allegations are made to us. It would also help us when gathering information about a campaign that involves a number of different campaigners and suppliers.
Improving our powers to help enforce other laws
Our main role is to ensure campaigners comply with the political finance rules. Sometimes we have information that relates to compliance with other legal frameworks, such as data protection law. However, it is not always clear whether we are able to share that information with the relevant regulator or law enforcement body.
We have a clear power to share information that relates to electoral law matters with relevant bodies. But we are reliant on others’ powers to allow us to share information that does not relate to our legal functions. This gap in our powers to share information applies both within and outside UK.
Fortunately, for matters of data protection, the Information Commissioner’s Office (ICO) has a power that enables us to provide and receive information relating to its functions. Without that we would not have the power to pass information relating to breaches of data protection to the ICO. However, the power relies on us having to determine that the information is necessary for the ICO’s functions. This could slow down our ability to refer relevant information in future.
We would prefer a general power enabling us to share information with other regulators or law enforcement bodies where we think it is in the public interest to do so. This would enable us to refer information more proactively where needed and streamline our processes.
Strengthening our powers to enforce the rules
The maximum fine we can impose for breaking the UK’s political finance rules is £20,000 for each offence. We have previously said that this is too low. Campaigners spend millions of pounds at UK elections and referendums, including on digital campaign activities.
We are worried that a maximum fine of £20,000 risks becoming a cost of doing business for some campaigners. This penalty does not provide an effective deterrent to stop campaigners committing offences.
Where offences have already taken place, this penalty is not proportionate to the impact that many of the offences could have. This is particularly the case when campaigners are not established political parties, for example in the context of a referendum. These campaigners may be less concerned about damaging their image or reputation in the future.
We want the UK’s governments and legislatures to change the law which limits our maximum fine. There should be a consultation about the level of fine. We think it should be similar to other regulators’ fines.
Currently, only the police and prosecutors can investigate if they suspect the candidate rules have been broken. We have previously recommended that we should be given powers to investigate breaches of the candidate spending and donation rules at major elections. This would be the same as our responsibility for party and other campaigner spending and donations. This change, and the others we’ve recommended, would help us find out if candidates and parties are correctly reporting digital spending against their own limits.
What digital and social media companies can do
We want digital and social media companies themselves to do more to help improve confidence in digital campaigns. They have already shown that they can help to uphold specific laws in different counties. For example, they have developed tools to help make sure their users do not break copyright laws.
They have also shown that it is possible to take action on political adverts. For American elections coming up in autumn 2018, Facebook, Google and Twitter have said they will check whether campaigners are based in the USA. Campaigners won’t be allowed to if they aren’t. We want them to make similar changes to their advertising policies in the UK. This would help improve compliance with the UK’s rules before voters even see campaign adverts.
Both Facebook and Google made changes to their policies on political adverts before the May 2018 referendum in Ireland. Facebook stopped campaigners outside Ireland from buying referendum adverts, and Google banned all paid adverts about the referendum.
Campaigners and commentators criticised both companies for making these changes very close to referendum polling day. They did not consult publicly on their plans beforehand.
We want digital and social media companies to make sure their policies on political adverts better reflect our election and referendum campaign rules. This could include removing campaign adverts or material that does not show clearly who is responsible for promoting it. It could include social media companies giving us information about campaigners we think have broken the rules. They could also look for campaigners they think have broken the rules and report them to us.
We also want to make sure that people in the UK can expect a consistent approach to political adverts from all the companies that operate here, rather than different individual policies from different companies. This means that they need to consult and work closely with us and also with campaigners in the UK. It also means we will need to check whether new companies are developing popular platforms or sites which campaigners are starting to use in the UK in future.
We will monitor how well the digital and social media companies’ voluntary proposals work at upcoming elections. If the proposals don’t work well, the UK’s governments and legislators should consider direct regulation.