Statutory guidance on digital imprints

The Elections Act creates two new powers in relation to enforcement of the regime.

Use of powers under Schedule 12 to the Elections Act 2022 – obtaining information

The police and the Commission have powers under Schedule 12 to the Act to obtain two different types of information.

There is a power to give notice in writing to any person requiring the person to provide information identified in the notice, which is reasonably required for:

• the purposes of determining whether digital material has been published without an imprint where one was required or
• to enable the police or the Commission to make contact with the promoter of the material or any other person on behalf of whom the material has been published

The police and the Commission also have a power to give notice in writing to any person requiring the person to provide it with electronic material identified in the notice, which is reasonably required for the purposes of determining whether electronic material has been published without an imprint where one was required.

In both cases the police may choose to use this power as an alternative to existing powers to obtain information. The Commission may exercise that power where it is proportionate and in the public interest to do so. Neither the police nor the Commission will do so where that information is easily accessible by other means. Any information obtained under such a notice may not then be used as evidence in any enforcement action against the person who provides the information to the Commission.

Compliance with notices

Where either of these powers are exercised by either the police or the Commission, a deadline for compliance will be set which must be complied with. The deadline will be proportionate, taking account of the facts of the specific situation, including the urgency of obtaining the information.

Where such a notice is not complied with, the police or the Commission may seek a court order requiring the information.

Use of powers under section 51 of the Elections Act 2022 – taking down material

The Commission has a power under section 51 of the Act to require that any material be removed or access to it disabled after the Commission has determined an offence has been committed under section 48(1) in relation to that material and imposed any sanction, or served a Stop Notice, or agreed an Enforcement Undertaking under its powers in Schedule 19C to the Political Parties Elections and Referendums Act 2000.

In deciding whether to exercise its power under section 51 of the Act, the Commission will consider whether to do so:

• is proportionate and in the public interest
• is in accordance with its enforcement objectives
• will assist in maintaining or improving transparency.

It will not generally exercise that power where, for example, the material has already been removed; the material has been amended to make it compliant; or for any other reason it is not proportionate or in the public interest to require it to be removed.

A similar power is available to a court under section 49(2) of the Act, following a conviction for an offence under section 48(1). There is no equivalent power available to the police because this power can only be used after an offence has been found, either by a court or the Commission.

It is a criminal offence for any person who receives a notice to take down material to fail to comply with it without a reasonable excuse.