3. Increasing transparency in digital election campaigning
- Extending the imprint rules to digital material is urgent. This gap in transparency is affecting voter confidence and impacting our ability to enforce the rules.
- All non-printed election and referendum material should contain an imprint.
- Any new regulations should be drafted as general principles to make them platform neutral and to future-proof them for changes in technology.
- The UK Government should give the Electoral Commission wider powers to compel information outside of an investigation, including from digital platforms.
- The imprint rules for printed election material in PPERA should be commenced for Northern Ireland.
- The imprint rules in Northern Ireland should be the same as the rest of the UK.
The PPERA and the RPA contain powers for the Secretary of State to make regulations requiring imprints on non-printed election and referendum material. This applies to digital material, and it can also include audio material. Our view is that any new regulations should cover all non-printed material.
Question 23: Do you as a voter believe that the current system as applied to printed election material promotes transparency and gives confidence in our systems?
- The imprint rules for printed election material ensure voters can check the source of election material, and allow the police, prosecutors and us to enforce the spending rules.
- Extending the imprint rules to digital material is urgent. This gap in transparency is affecting voter confidence and impacting our ability to enforce the rules.
The imprint rules have two purposes. They ensure that voters can find out who is behind the election material they receive. And they allow the police, the CPS, the Procurator Fiscal, the PSNI and us to track campaigners’ spending so that we can enforce the spending rules. Without the imprint rules, campaigners could run campaigns without ever having to identify themselves as the source. This is currently the case with digital material.
At the beginning of 2018, we contracted the research company GfK to carry out research with the public. Our aim was to find out what the public knew and understood about political finance regulation in the UK and digital campaigning at elections and referendums. The findings confirmed the need for digital imprints. It showed that participants were more likely to pay attention to digital material, were concerned about its source and thought the imprint rules should be extended to digital material.
Question 24: Should the imprint rules in PPERA be commenced for Northern Ireland?
- The imprint rules in PPERA should be commenced for Northern Ireland. Voters in Northern Ireland should know who is behind campaign material.
The imprint rules in section 143 PPERA originally applied across the whole of the United Kingdom in February 2001. Following representations from the Labour, Conservative and Liberal Democrat parties, the Election Publications Act 2001 suspended the provisions from April 2001. This was because a large amount of election material for the 2001 UK Parliamentary general election had already been printed without an imprint, so could not be used. In 2006, SI 2006 No. 3416 reinstated section 143 PPERA provisions in Great Britain only. We do not know why the Order did not extend the provisions to Northern Ireland.
Where party and non-party campaigner election material in Northern Ireland lacks an imprint, we have no powers to investigate and sanction a campaigner under PPERA. This means there is no deterrent in Northern Ireland, as there is in the rest of the UK, for failing to include one. The UK government must commence the imprint rules for Northern Ireland.
Question 25: Should the imprint rules for Northern Ireland elections be the same as for the rest of the United Kingdom?
- The imprint rules for all campaigners in Northern Ireland should be the same as for the rest of the United Kingdom.
- Making the imprint requirements in the Electoral Law Act 1962 the same as those in section 110 RPA would provide further clarity. This would help simplify electoral law as the UK’s Law Commissions have proposed.
Currently in Northern Ireland an earlier version of Section 110 RPA is in force for imprints on candidate material for UK Parliamentary and Northern Ireland Assembly elections. This is because the Election Publications Act 2001 suspended the application of the new version of section 110 RPA (introduced under section 136 and Schedule 18 PPERA). Under SI 2006/3416, the new version of section 110 RPA was brought into force only in Great Britain (not Northern Ireland).
Principle and purpose
Question 26: What are your views on whether imprints should be required on all digital electoral material or only where spending on such material has been over a certain threshold?
- All digital election and referendum material should include an imprint.
- Any new regulations should ensure that individuals expressing personal opinions are not covered.
All digital election and referendum material should include an imprint. The current rules for printed election material do not specify a minimum spending threshold before a campaigner must add an imprint. We do not think that any new rules for digital material should be different from the rules for printed material.
Specifying a spending threshold creates other problems. A campaigner may spend very little, or nothing (apart from staff time), on creating a campaign message that reaches a lot of voters because that they can achieve wide organic reach. We do not think it is right that because they have spent nothing on creating and distributing the message, they should not have to identify themselves as its source.
Further, we would not know what, if anything, a campaigner has spent on digital election material. Campaigners are not required to report their spending during an election or referendum campaign. This means we would not know whether a campaigner had passed the threshold, and therefore whether they had committed an offence by not including an imprint. This would undermine the purpose of extending the requirement to digital material, and make it difficult for the police and us to enforce the new rules.
It is important that any new imprint rules do not affect voters’ right to engage in political debate online during election and referendum campaigns. Any new rules should not cover individuals expressing personal opinions.
When should imprints be required?
Question 27: Should any new rules on digital material only apply to what we would already consider to be “electoral material” or should broader categories be considered?
- The UK Government should use the regulation-making powers in the PPERA and the RPA to make imprints on non-printed election material a legal requirement.
- Regulating broader categories of political advertising requires more thought and more scrutiny.
Extending the imprint rules to non-printed material is urgent. Therefore, we think that the UK Government should use the existing regulation-making powers in the PPERA and the RPA. But those powers only allow the Secretary of State to draft regulations that apply to “election material” as defined in the PPERA, and to material that is intended to promote or procure the election of a candidate in the RPA. Regulating wider forms of political advertising would require amending primary legislation, which would take much longer than introducing regulations.
Regulating broader categories of political advertising requires more thought and more scrutiny. This would be a much different form of regulation than the current rules. The UK’s governments and legislatures would need to consider which principles should underpin any new rules for regulating wider political speech. They would need to ensure that the rules do not curtail free speech, and to consider the practicalities of enforcing any new rules. We think that more would need to be done to explore this idea.
Question 28: Do you agree that the requirement for imprints on election material can arise all year round, not just during election periods?
We agree with the Government’s interpretation of the PPERA imprint requirements. Sections 143 and 143A do not specify a particular time period when the imprint rules apply. The requirement to include an imprint arises where the material can be reasonably regarded as intended to promote or procure electoral success for particular parties or categories of candidates, and the material relates to an election. These two tests may be met before the regulated period for that election has started.
We think that the RPA imprint requirements apply during the specific timeframe when people are formally treated as candidates. Under section 110 RPA, imprints are required on any material which can be reasonably regarded as intended to promote or procure the election of a candidate at an election. Section 118A defines the earliest date on which a person can become a candidate for a UK Parliament or local election. There are no candidates before that date. Therefore, it is the earliest date on which an imprint is required.
This means, for example, that there are no imprint requirements for material promoting a candidate in the long campaign period at a UK Parliamentary general election. We think the Government should consider this further, because there is an inconsistency in the law if the pre-candidacy spending rules apply whilst imprint requirements do not apply.
What forms of digital communications should be covered?
Question 29: Should we prioritise regulating certain forms of digital communications over others? If so, please give reasons.
- Certain forms of digital communication should not be prioritised over others.
Digital campaigning is constantly evolving. If certain digital communications are prioritised, they may become outdated in the next few years. This would make any new rules outdated and unworkable.
Political campaigns use a variety of digital channels to communicate their campaign messages to voters. They currently use email, websites, website advertising, search advertising and social media posts. Digital campaign messages can consist of text, photo, graphics, video, audio, slideshows, and various combinations of these formats.
We have observed in our monitoring of election and referendum campaigns the evolution of social media advertising from posts consisting of text only to embedded video. This shows why it is important that any new imprint rules for digital and other non-printed material should cover all kinds of digital communications. This will also help to future-proof the new regulations for changes in technology and media.
How should the imprint be incorporated?
Question 30: What sort of mechanisms for including an imprint should be acceptable? Are there any technical difficulties that would need to be overcome to include text which is not accessible without a further step?
Question 31: Would you find an imprint in an overarching space such as a ‘bio’ on Twitter sufficiently visible?
- We support the principle that a campaigner’s full details should be part of the campaign message itself.
- We do not think that an imprint in an overarching space is sufficiently visible.
Until now we have said in our guidance that it is acceptable to include a full imprint on a ‘bio’ or ‘profile’ page if it cannot be part of the message itself. We took this approach during the Scottish Independence Referendum because it was a pragmatic solution to the (then) 140-character limit on Twitter. It has worked until now. But advertisers can remove the imprint from ‘bio’ or ‘profile’ information at any time. This is not a solid basis for transparency. And it is a platform-specific solution, which may not work for newer forms of social media.
We think that the law should move away from platform-specific solutions. Digital media and digital campaigning are constantly evolving, and this includes technical facilities to put an imprint on election ads. Therefore, any new imprint requirement should be ‘platform-neutral’. In other words, it should apply to any kind of digital campaign message on any platform, and it should be part of the message itself. On platforms with word or character limits, like Twitter for example, a video or photo embedded in or attached to the message would allow a full imprint to be displayed. This could also be achieved with the dropdown boxes some platforms use to give users information about the advertising they see.
Question 32: How can these mechanisms be future-proofed in expectation of developments in media and technology?
- Any new regulations should be drafted as general principles to make them ‘platform-neutral’.
- The regulations should say that the technical design of digital imprints must allow machines to read, record and store them.
- The Government should consider carefully how to specify in regulations the circumstances in which non-printed material is, or is not, considered to be published.
- In the longer term, the UK government should consider amending the regulation-making powers in the PPERA and the RPA so that the rules can be kept up-to-date with technological developments. This could include giving us the regulation-making powers or a power to make a Code of Practice for imprints.
We think that any new regulations should apply to all digital material on different platforms and media. This could be achieved by drafting general principles for including an imprint rather than specific rules for different media. This approach would help to make the new regulations ‘platform-neutral’ and future-proof them.
The explanatory notes and memorandum for the regulations could contain examples of how they apply to different forms of digital advertising. We can use our guidance to explain at elections and referendums how the rules apply to the digital channels that campaigners are using at that time.
Regulations made under the powers in section 143 PPERA and in section 110 RPA may specify the circumstances in which non-printed material is, or is not, considered to be published. This will be an important part of future-proofing the regulations, and we think the Government should consider carefully how to specify those circumstances. We will work with the Government on how to specify them.
Any new requirement should say that the technical design of digital imprints must allow machines to read, record and store them. A number of organisations have recommended creating a central database of all election and referendum advertising. The technical design of digital imprints should allow them all to be stored in one place, should this be necessary at some point in the future.
At this stage, we think that the right approach is to use the regulation-making powers in the PPERA and the RPA to make imprints on digital material a legal requirement. But advances in technology mean that both we and the UK government will need to keep the rules under regular review. It is likely that the UK government will need to amend them at some point despite its best efforts to future-proof them.
For this reason, the UK government should consider whether to introduce primary legislation, when the opportunity arises, to amend the regulation-making powers in the PPERA and the RPA. The current powers were drafted at a time when print advertising was the main form of election advertising. They require the Secretary of State to model regulations for non-printed material after the rules for printed material. This may not give the Secretary of State enough discretion in the future to introduce regulations that are up-to-date with developments in technology.
In the longer term, the UK government should also consider either transferring the regulation-making powers to the Electoral Commission, or giving us a power to make a Code of Practice for imprints. We would be responsible for ensuring compliance with the new digital imprint requirements. And we have a duty to keep the law under review. We would therefore be best placed to know if and when the regulation-making powers needed to be used to update the regulations.
Alternatively, a power to make a Code of Practice would allow us to provide additional statutory guidance for campaigners on how and when to include an imprint on digital material. And this should be able to be amended more easily than the requirements in legislation.
Who should be responsible for including the imprint?
Question 33: Should those who subsequently share digital electoral material also be required to include an imprint and, if so, whose details should be on it - theirs or the original publisher?
- Individuals who subsequently share material on a personal basis should not have to include an imprint.
- But where campaigners distribute a new election or referendum message that involves sharing material from another, unrelated organisation because they think it will enhance their electoral chances, they should have to include their own imprint on the new message.
Individuals who want to share material from campaigners they know and trust. We think this is an important aspect of democratic engagement. Individuals would be deterred from sharing election material online if they knew they had to put their own imprint on it. As long as the material they share has the campaigner’s imprint on it, this is enough.
Enforcement and redress
Question 34: Do you think the responsible bodies have sufficient enforcement powers?
- Our current powers would be adequate for enforcing any new digital imprint regulations in the course of an investigation, but not where we haven’t opened an investigation.
- The UK government should give us wider powers to compel information, including from digital platforms.
- The UK government should increase the maximum fine we can impose for breaches of the imprint rules.
- The UK government should give us the power to investigate and sanction breaches of the candidate rules in the RPA.
We have powers to investigate and sanction campaigners for breaching the imprint rules in section 143 PPERA. This includes being able to fine a campaigner up to £20,000 for failing to include an imprint. Only the police and prosecutors are able to investigate, prosecute and sanction breaches of the imprint rules in section 110 RPA.
We consider the powers we have to enforce the imprint rules for printed materials to be adequate. We can compel any person or organisation to give us information during an investigation. In most cases where there is a clear case of a failure to include an imprint, we would open an investigation. We would expect to be able to do the same with digital platforms under our existing powers.
However, outside of an investigation we can only compel bodies regulated under PPERA to give us information about income and expenditure. Our powers to require information do not extend to third parties such as newspapers or digital platforms. This means that currently we would not be able to obtain information about the source of an advert which had no imprint. The ability to find out the identity of campaigners outside an investigation is also relevant for enforcing the spending rules.
We think that we should have the power to compel digital platforms, and others, to give us information we need to perform our statutory functions, such as advertisers’ contact details or amounts spent on distributing election material. This would allow us to effectively monitor campaign activity and take action to prevent non-compliance where possible at an early stage.
We have previously said that our maximum fine of £20,000 for each offence is too low. When considering how much to fine a campaigner for failing to include an imprint on campaign material, one of the factors we take into account is how many people may have seen it. Digital campaign messages can potentially reach many more people than a newspaper advert. And as they can be delivered directly to a handheld device, voters have less control over whether they see them. Our maximum fine should reflect these factors. It should therefore be increased.
We have previously recommended that we should be given powers to investigate and sanction breaches of the candidate rules in the RPA. We have seen some high-profile alleged breaches of the candidate rules, mostly at national elections, where referral for criminal prosecution was not considered to be in the public interest. But it may have been appropriate to investigate further and issue a civil sanction if we had had the power to do so. This is why we repeat this recommendation here.