Online Political Campaign Advertising – Searching For Clarity

In the era of fake news, alternative facts and growing public mistrust over the truth of what politicians have to say, the issue of how to regulate political advertising was drawn kicking and screaming into the news agenda during the 2019 General Election. Given the clear shift away from print campaigns and media spend towards social media, elections are increasingly being fought and won online. 

However, although the UK is aiming to pass legislation sooner rather than later to tackle online harms by imposing a new statutory duty of care on businesses with an online component to protect their users from harmful content (including fake news), the regulation of political advertising has traditionally only focussed on print material, with election leaflets and newspapers needing to include details on who made and paid for their content. The ASA polices the content of advertising and marketing communications in the UK through a system of self-regulation, although that doesn’t stretch to political advertisements given the fact that their adjudications may be seen to favour one party over another. 

The Electoral Commission, however, is the independent body charged with overseeing elections and regulating political finance in the UK, working to promote public confidence in the democratic process and ensuring its integrity. In its report into the 2019 General Election the Commission found that misleading content and presentation techniques were undermining voters’ trust in campaigns, and that it was “too often unclear who is behind digital election material”, with “significant concerns about the transparency of digital election campaigns” potentially overshadowing the benefit of direct (and more often than not, carefully microtargeted) engagement with the electorate. 

The major social media platforms have all taken different stances on how to deal with political messaging delivered through their services. Twitter, for example, has banned political advertising in favour of earned reach. Google has taken steps of its own to restrict targeted ads in favour contextual criteria over political affiliation, and Facebook has recently moved away from holding the middle ground to banning specific ads, allowing its users to opt out of receiving political ads and introducing compulsory disclaimers ahead of the impending US General Election and in the wake of increased political and public criticism of its role in the Brexit Referendum.

The new proposals don’t include any requirement for online political advertising to be truthful or factually accurate, but the government’s new consultation looks to introduce an obligation to say who is paying for it – an issue of increasing importance to the public in the wake of the Russia Report. A “digital imprint” would have to be displayed as part of any online political content if the proposals are introduced through a video, graphic, text or banner, and whether organic or paid-for. However, where a video or graphic disclaimer isn’t viable, the proposals also allow for a link to the new disclaimers at an accessible alternative location. 

Social media platforms have engaged with the Government for some time prior to the launch of the new consultation, and have welcomed the new proposals. However, campaigners are already claiming that the new measures won’t go far enough. The Electoral Commission recognises that it can’t regulate the truthfulness of political advertising either online or offline, but hopes that the new digital imprints will help voters make their own decisions on the credibility of campaign messaging – noting that they will need to be included whenever the messaging is run, whether or not during elections or referendums. 

Whilst the current print “imprint” system can attract a maximum fine from the Electoral Commission of £20,000 per offence if proportionate and in the public interest, their enforcement policy will need an overhaul to make it fit for purpose in the digital environment. Content will require an imprint, as is the case now, if it can “reasonably be regarded as intended to promote the electoral success of a candidate or party”. This may rule out the majority of digital content, which would likely have little to do with promoting electoral success. Even then, the imprints will only be required if the content in question comes from a registered political party, third party campaigner, candidate, elected official or unregistered campaigners in relation to paid material. Imprints will need to include the name and address of those promoting it, and on whose behalf it’s being published. 

Campaigners are already calling the proposed new regime the “bare minimum”, and it’s certainly true that prominence of the imprints will be a key issue. Many campaigners may look to “bury” them in bios or “about” sections of social media profiles, even if they’re not meant to be “difficult to find” – voters much be able to “easily access and view” imprints, regardless of the device being used or how it’s presented, and they need to be a permanent part of the content, clearly readable, legible or audible and replicated when reshared. Resharing itself wouldn’t require a new imprint if the original material is substantively altered to fall outside the imprint criteria, or if it involves republishing unpaid election material from unregistered third parties. Notably, digital election material would be subject to the new regime regardless of where in the world it’s promoted from – clearly seeking to address the spectre of foreign interference from state-sponsored actors. That’s an issue which the Government is addressing separately, notably where the Russia Report effectively concluded that no effort had been made to investigate interference in the 2016 Brexit Referendum.

The Government claims that the new proposals will be one of the most comprehensive sets of regulations to improve transparency in political campaigning anywhere in the world, allowing UK citizens to safely engage with politics online. However, until further clarity is provided by the Electoral Commission on how this will all work in practice and what sanctions will be available to them in the event of a breach, it’s hard to say whether or not this new system will have any real impact on the presentation of political messaging and the real elephant in the room is how to regulate the content itself. The ASA has no appetite to do so, and the Electoral Commission claims not to have the power or resources to do so. Ultimately, if the attention of the average Facebook User getting most of their news from their own feed and related echo chamber is as short as claimed, the new disclaimers may not have as much of an impact as the Government hopes. Whatever the case, social media is now very much part of political campaigning and we may have to wait some time to see how much of an “imprint” remains after the current consultation closes given that the original online harms regime has in the eyes of some already been significantly watered down. This new approach may help in terms of transparency, but their impact on credibility and how that translates into decisions taken in Polling Stations remains to be seen.

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Partner, Head of Creative, Digital & Marketing sector group

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