As the UK finds itself in the midst of an election period, the digital battleground has become increasingly prominent with online political advertising playing a pivotal role. Yet despite its growing influence on public opinion and electoral outcomes, there remains a striking absence of comprehensive regulation in this sphere. We look at the current landscape of online political advertising in the UK and shed light on how online platforms grapple with their significant yet complex role in hosting political discourse.
What is political advertising?
In the CAP Code which regulates non-broadcast advertising in the UK, the Advertising Standards Authority (ASA), defines political advertising as:
"Claims in marketing communications, whenever published or distributed, whose principal function is to influence voters in a local, regional, national or international election or referendum", with the exception that "Marketing communications by central or local government, as distinct from those concerning party policy, are subject to the Code".
Determining whether or not an ad is "political" is based on the nature and function of the claims contained in the ad itself. This is not determined by the identify of who is making or placing the ad. Additionally, the wording "whenever published or distributed" means that even ads published outside of an election period or when no election or referendum has been called and that otherwise fit the description in the definition, will be caught.
How is political advertising regulated?
Political advertising is exempt from the remit of the CAP Code. This has been the case since 1997 and the policy was introduced for a number of reasons:
- the ASA's concerns around damaging the impartiality of its regulatory system by being seen to make decisions on political matters
- the fact that the adjudication process is typically slower than an electoral timeframe and so would have little impact and would not be fit for purpose
- the potential for conflict with the right to freedom of expression under the Human Rights Act, and
- a lack of political consensus between the main political parties (at the time) on the application of the CAP code to political advertisements.
The CAP Code's foundational principle that ads must be "legal, decent, honest and truthful" is incompatible with the reality of political promotions, both from a practical point of view and in terms of conflict with fundamental principles of freedom of expression.
That said, while UK electoral law does not require claims in political campaigns to be truthful or factually accurate, there are some limits on what can be said. For example, making or publishing a false statement of fact about the personal character or conduct of a political candidate may be a crime under the Representation of the People Act 1983. The UK Statistics Authority can also complain to political campaigners if it believes they have misused official statistics in their political campaign material.
Similarly, the lines may blur where an ad's function is partly, but not necessarily primarily, to influence voters and it is therefore not clear whether it is out of scope of the CAP Code. For example, in the case of an ad for a commercial product which makes a political point or a topical reference to the election, the CAP Code may apply.
In these instances, the ad will simply be treated by the ASA as any other. Advertisers can promote causes or give opinions but they cannot imply their opinions are objective facts or cause serious or widespread offence by expressing those opinions. The ASA accepts that where making a ruling on a contentious issue, it will likely upset someone but in many instances, the advertisers' right to freedom of expression will outweigh the offence caused and anyone so offended should exercise their democratic right to tell the advertiser what they think. One exception to this is that ads placed on non-paid for space both online and offline (therefore including the marketer's own website) which concern causes or ideas are excluded from the remit of the CAP Code unless they also include a direct solicitation of donations, in which case they would be in scope.
Broadcasting
Political ads are banned from being broadcast on TV or radio by the Communications Act 2003. This rule is enforced strictly by Ofcom, the broadcasting regulator and the issue is outside the ASA's remit. Instead, political parties are given airtime by the major broadcasters during an election period for the airing of party-political broadcasts. These are purely political (in the sense of their purpose being to influence voters) but are not classified as ads.
Online
In 2011, spending by political campaigners on digital advertising was 0.3% of their total spend. In 2017, it was 42.8%. It seems likely that the percentage in this year's UK election will be even higher. A huge amount of focus and emphasis is clearly being placed on online political ads.
Despite this, online political advertising has been described by campaign group, the Electoral Reform Society, as the "wild west" with "a near-total lack of regulation of online political advertising”. In response to similar criticisms and ongoing debate, the government introduced the Elections Act 2022 which introduced certain transparency requirements for online political ads, requiring the prominent display of identifying information of the promoter and the person on whose behalf the material is published (if not the promoter). However, the reforms did not go further, which many had been calling for.
Platform liability and the Online Safety Act
The Online Safety Act 2023 has also brought in some changes to how political advertising is regulated online. Specifically, Category 1 service providers have a duty to protect political speech, in particular "content of democratic importance" which is news publisher content (NPC) or regulated user-generated content and which is, or appears to be, specifically intended to contribute to democratic political debate in the UK or a part of the UK (CDI). In relation to CDI on their platforms, Category 1 service providers have to operate proportionate notice and takedown systems and processes which apply in the same way to a diversity of political opinion and have to address the policies and processes relating to CDI in their terms of service.
Is greater regulation coming?
While non-broadcast political advertisements are only subject to very light regulation, the Elections Act 2022 and the Online Safety Act have introduced measures aimed at enhancing transparency and accountability. Nevertheless, these reforms scratch only the surface of what many argue is required. Calls for comprehensive regulation are growing louder against a backdrop where platforms bear an increasing responsibility to balance free expression with the prevention of misinformation. The EU has already taken steps to regulate this area directly as we discuss here). Depending on the decorum of the various parties during this election period, the debate and therefore the pressure for additional regulation, may be reignited.
