Online political campaigning

It is a common complaint that the UK’s electoral and campaigning laws are vast, complex and out of date. The government’s announcement of a new consultation – Transparency in digital campaigning: technical consultation on digital imprints – may seek to bring the regulation of political campaigns into the 21st century, but it may amount to another layer of complexity. Political parties, candidates, party donors, third party campaigners, charities, NGOs and businesses interested in lobbying must be aware of these upcoming changes. Your organisation may have never physically printed political materials before, but it may be inclined to publish an article online that could be construed as political. These changes capture such activities and are highly relevant to such organisations unfamiliar with campaign regulations.

The background

In July 2017 the Committee on Standards in Public Life (CSPL) was asked by the then prime minister, Theresa May, to conduct a review of intimidation experienced by parliamentary candidates. In turn, the Cabinet Office consulted on the CSPL’s report, which included consideration of ‘extending the electoral law requirements for an imprint on campaigning materials to electronic communications’. An imprint is a statement given on printed political campaigning materials that details the names and addresses of the printer and promoter of the material, as well as anyone acting on their behalf.

In May 2019, the government responded to that Cabinet Office consultation on Protecting the Debate: Intimidation, Influence and Information by developing proposals for a ‘digital imprints regime’ by replicating the ‘printed imprint model in the digital sphere’. In the meantime, the Public Administration and Constitutional Affairs Committee expedited the need for reform in its report on Electoral Law: The Urgent Need for Review.

The consultation

In seeking to develop a ‘digital imprints regime’, the anticipation is to introduce transparency and accountability into the online arena where the political debate is increasingly centred and where the origin of materials is often opaque. In the absence of information about the promoter of the material, voters cannot assess who is responsible for its production. As the government recognises:

‘The problem is particularly acute when it comes to third party campaigners who may aim for a more general outcome beyond a particular candidate, so it is sometimes less obvious who they represent and on whose behalf they are acting’.

In addition to voter transparency, a digital imprints regime would also assist the Electoral Commission to monitor and enforce campaigning spending laws, particularly by discovering who may need to register with it and submit spending figures after an election.

The key information to take away from the consultation are the prospective two tests that will determine whether a digital imprint is required:

• Can the material reasonably be regarded as intended to promote or procure the electoral success of registered political parties and candidates?
• What is the status of the entity / individual publishing the material and who is paying for it:
  • If registered political parties, registered third party campaigners, candidates, holders of elected office and registered referendum campaigners, an imprint is required for both paid and unpaid materials; or
  • If unregistered third party campaigners, an imprint is required for paid material only.

The consultation opened on 12 August 2020 and will run until 4 November 2020. The government will then take time to consider consultation responses and draft the necessary legislation. Readers should not expect these proposals to become law for another year, but certainly before the next election.

Implications

The thrust of these proposals is transparency. As such, political parties, candidates, non-political third parties, charities, businesses and trade associations must prepare for being open and forthright in the digital sphere. In theory this may be simple as the rules will extend the existing regime for printed materials, but the trouble will be ensuring internal protocols, processes and audit systems are compliant with the law to ensure the aforementioned tests are applied robustly and correctly. If a digital imprint in not given when it should have been, the Electoral Commission has the power to levy fines up to £20,000 per offence and pass candidate matters to the police.

It is important to note that the digital imprint regime will apply all year round, not just during the 365 day ‘regulated period’ before an election or referendum (which sets the context for other campaign spending rules). Care must therefore be taken to ensure ongoing compliance, which will become heightened during that regulated period. Moreover, the proposals, if made law, will apply to digital election material irrespective of the country it is being promoted from. Accordingly, international donors and promoters must be aware that their name and address must be disclosed if they intend to promote or procure electoral success of a party or candidate in the UK.

More relevant to Online Service Providers (OSP), the proposals will limit their liability through a ‘notice and take down’ rule, where the OSP must remove the offending material once they have actual knowledge of it, or risk committing an offence.

We at BDB Pitmans advise on the law relating to political campaigning. If you require assistance navigating the technical detail, responding to the consultation or preparing for its implementation, please get in touch.

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