Hostname: page-component-78c5997874-lj6df Total loading time: 0 Render date: 2024-11-10T17:13:16.414Z Has data issue: false hasContentIssue false
  • English
  • Français

Political advertising revisited: digital campaigning and protecting democratic discourse

Published online by Cambridge University Press:  05 November 2019

Michael Harker Open the ORCID record for Michael Harker [Opens in a new window]
Michael Harker*
Affiliation:
UEA Law School, University of East Anglia, Norwich, UK
*
*Author email: m.harker@uea.ac.uk
Get access Rights & Permissions [Opens in a new window]

Abstract

This paper is concerned with the legal and regulatory control of electoral campaigning online, in particular ‘microtargeting’. There has been a longstanding consensus in the UK on how to control political advertising, yet the shift of expenditure to the online environment, together with innovations in digital campaigning tools, are exposing tensions and gaps in the current regime. One central harm associated with microtargeting is its potential to undermine meaningful democratic deliberation. The paper interrogates the issues through the lens of electoral law and regulation, and questions the extent to which a recalibration is necessary to deal with the challenges of digital campaigning.

Keywords

public law (SLS)political advertisingmicrotargetingelectoral law
Type
Research Article
Information
Legal Studies , Volume 40 , Issue 1 , March 2020 , pp. 151 - 171
Copyright
Copyright © The Society of Legal Scholars 2019

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Fifth Report of the Committee on Standards in Public Life The Funding of Political Parties in the United Kingdom Cm 4057–I, October 1998 (hereafter the Neill Committee) para 13.11.

2 Council of Europe Study on the use of internet in electoral campaigns, Council of Europe study (DGI(2017) April 2018) p 23 (hereafter CoE report).

3 Electoral Commission Digital Campaigning: Increasing Transparency for Voters (June 2018).

4 House of Commons Digital, Culture, Media and Sport Committee Disinformation and ‘Fake News’: Interim Report, Fifth Report of Session 2017–19, HC 363, 29 July 2018 (hereafter DCMSC interim report); House of Commons Digital, Culture, Media and Sport Committee Disinformation and ‘Fake News’: Final Report, Eighth Report of Session 2017–19, HC 1791, 14 February 2019 (hereafter DCMSC final report).

5 Commission Communication Tackling Online Disinformation: A European Approach COM(2018)236 final) pp 7–8; EU Commission Action Plan against Disinformation (JOIN(2018) 36 final); European Commission A Multi-Dimensional Approach to Disinformation: Report of the Independent High Level Expert Group on Fake News and Online Disinformation (March 2018) pp 12, 22.

6 EU Commission EU Code of Practice on Disinformation (26 September 2018) (hereafter EU CoP) available at https://ec.europa.eu/digital-single-market/en/news/code-practice-disinformation.

7 For a discussion see Information Commissioner's Office Democracy Disrupted? Personal Information and Political Influence (11 July 2018); European Data Protection Supervisor Opinion on Online Manipulation and Personal Data (Opinion 3/2018) (hereafter EDPS report).

8 For an overview see Haves, EPersonal Data, Social Media and Election Campaigns (Lords Library notes LLN-2018-0061, 13 June 2018)Google Scholar.

9 The Information Commissioner's Office (ICO) is currently investigating several organisations concerning the use of data analytics for political purposes and potential breaches of data protection law, including alleged criminal offences. In this connection, Facebook has been fined £500,000 (the maximum civil penalty) for breaches of Data Protection Act 1998. For further information see https://ico.org.uk/about-the-ico/news-and-events/news-and-blogs/2018/10/facebook-issued-with-maximum-500-000-fine/.

10 For a discussion see Habermas, J ‘Political communication in media society: does democracy still enjoy an epistemic dimension? The impact of normative theory on empirical research’ (2006) 16 Communication Theory 411CrossRefGoogle Scholar.

11 Of course, this may be necessary in certain circumstances (eg hate speech).

12 J Black ‘Enrolling actors in regulatory systems: examples from UK financial services regulation’ (2003) Public Law 63. For a detailed explanation of the digital advertising industry see S Adshead et al Online Advertising in the UK (Plum/DCMS, January 2019) available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777996/Plum_DCMS_Online_Advertising_in_the_UK.pdf.

13 In line with the scope of this paper, the obvious threats to privacy and data protection rights are not discussed here.

14 International Institute for Democracy and Electoral Assistance Digital Microtargeting: Political Party Innovation Primer (Stockholm: IDEA, 2018) p 10 (hereafter IDEA). On the changing models of campaigning, from mass-centred to individual-centred campaigns, see Kruschinski, S and Haller, A ‘Restrictions on data-driven political micro-targeting in Germany’ (2017) 6(4) Internet Policy ReviewGoogle Scholar available at https://policyreview.info/articles/analysis/restrictions-data-driven-political-micro-targeting-germany.

15 Bartlett, J et al. The Future of Political Campaigning (DEMOS, July 2018) p 26Google Scholar.

16 For an overview see: IDEA, above n 14, pp 10–16; Tambini, D ‘Social media power and election legitimacy’ in Moore, M and Tambini, D (eds) Digital Dominance: The Power of Google, Amazon, Facebook, and Apple (Oxford: Oxford University Press, 2018) pp 274–278Google Scholar; EDPS report, above n 7, pp 7–9.

17 For a detailed account of the online advertising industry, see Adshead et al, above n 12.

18 See ICO, above n 9, p 58.

19 Bartlett et al, above n 15, p 7; Chester, J and Montgomery, KC ‘The role of digital marketing in political campaigns’ (2017) 6(4) Internet Policy ReviewGoogle Scholar available at https://policyreview.info/articles/analysis/role-digital-marketing-political-campaigns.

20 IDEA, above n 14, p 12.

21 EDPS report, above n 7, p 8.

22 Bartlett et al, above n 15, p 21.

23 EDPS report, above n 7, p 9.

24 Bartlett et al, above n 15, pp 1–22, 31 (and the references cited therein).

25 Chester and Montgomery, above n 19.

26 Bartlett et al, above n 15, p 28; EDPS report, above n 7, p 8.

27 Bartlett et al, above n 15, p 33.

28 Gorton, WA ‘Manipulating citizens: how political campaigns’ use of behavioral social science harms democracy’ (2016) 38(1) New Political Science 61 at 70CrossRefGoogle Scholar.

29 For a discussion see Borgesius, FJ Zuiderveen et al. ‘Online political microtargeting: promises and threats for democracy’ (2018) 14 Utrecht Law Review 82 at 84–89Google Scholar; Bodó, B et al. ‘Political micro-targeting: a Manchurian candidate or just a dark horse?’ (2017) 6(4) Internet Policy ReviewGoogle Scholar available at https://policyreview.info/articles/analysis/political-micro-targeting-manchurian-candidate-or-just-dark-horse.

30 Cf Anstead, N ‘Data-driven campaigning in the 2015 United Kingdom general election’ (2017) 22(3) The International Journal of Press Politics 294 at 308Google Scholar.

31 For a discussion see Dommett, K and Temple, L ‘Digital campaigning: the rise of facebook and satellite campaigns’ (2018) 71 Parliamentary Affairs 189CrossRefGoogle Scholar.

32 Gorton, above n 28, at 63.

33 Kreiss, D ‘Yes we can (profile you): a brief primer on campaigns and political data’ (2012) 64 Stan L Rev Online 70 at 74Google Scholar; Gorton, above n 28, at 63; Zuiderveen Borgesius et al, above n 29, at 87; CoE report, above n 2, p 18.

34 Sunstein, CRepublic.Com 2.0 (New York: Princeton University Press, 2009)Google Scholar. For a literature review see Borgesius, FJ Zuiderveen et al. ‘Should we worry about filter bubbles?’ (2016) 5(1) Internet Policy ReviewGoogle Scholar available at https://policyreview.info/.

35 For a review of the evidence see Spohr, D ‘Fake news and ideological polarization: filter bubbles and selective exposure on social media’ (2017) 34(3) Business Information Review 150CrossRefGoogle Scholar. Some question whether there is robust empirical evidence that filter bubbles can shape voter preferences: Zuiderveen Borgesius et al, n 29 above; Dubois, E and Blank, G ‘The echo chamber is overstated: the moderating effect of political interest and diverse media’ (2018) 21(5) Information, Communication & Society 729CrossRefGoogle Scholar.

36 Flaxman, S et al. ‘Filter bubbles, echo chambers, and online news consumption’ (2016) 80(1) Public Opinion Quarterly 298CrossRefGoogle Scholar; Fletcher, R and Nielsen, RK ‘Are people incidentally exposed to news on social media? A comparative analysis’ (2018) 20(7) New Media & Society 2450CrossRefGoogle Scholar; Gentzkow, M and Shapiro, JM ‘Ideological segregation online and offline’ (2011) 126(4) The Quarterly Journal of Economics 1799CrossRefGoogle Scholar.

37 Dutton, WH and Fernandez, L ‘How susceptible are internet users? (2019) 46(4) Intermedia 36Google Scholar.

38 Gorton, above n 28, at 71.

39 Rubinstein, IS ‘Voter privacy in the age of big data’ (2014) 5 Wis L Rev 861 at 910Google Scholar; Anstead, above n 30, at 308–309.

40 Rubinstein, ibid, at 909; CoE report, above n 2, p 18.

41 However, there is evidence that microtargeting has been used successfully in countries which have proportional representation electoral systems, see Kruschinski and Haller, above n 14; Magin, M et al. ‘Campaigning in the fourth age of political communication’ (2017) 20(11) Information, Communication & Society 1698CrossRefGoogle Scholar.

42 The term was coined by Howard, PNew Media Campaigns and the Managed Citizen (Cambridge: Cambridge University Press, 2006)Google Scholar.

43 There is also some evidence that since it is rational to focus on those more likely to vote (especially older voters), it may have the consequence of leading to great voter disengagement in the longer-term: Endres, K and Kelly, KJ ‘Does microtargeting matter? Campaign contact strategies and young voters’ (2018) 28(1) Journal of Elections, Public Opinion and Parties 1CrossRefGoogle Scholar.

44 Rubinstein, above n 39, at 908–909.

45 EDPS report, above n 7, p 13.

46 For a discussion of the US see D Kreiss and SC McGregor ‘Technology firms shape political communication: the work of Microsoft, Facebook, Twitter, and Google with campaigns during the 2016 US presidential cycle’ (2017) Political Communication 1; Nickerson, DW and Rogers, T ‘Political campaigns and big data’ (2014) 28(2) Journal of Economic Perspectives 51CrossRefGoogle Scholar.

47 CoE report, above n 2, p 18.

48 Tambini, above n 16, p 281.

49 Bodó et al, above n 29; Kreiss and McGregor, above n 46, at 4.

50 Zuiderveen Borgesius et al, above n 29, at 89. There is anecdotal evidence from a former Facebook employee claiming to have been involved in suppressing conservative issues from trending on the platform in the US (CoE report, above n 2, p 18).

51 Kreiss and McGregor, above n 46, at 4–5.

52 Tambini, above n 16, p 282.

53 EDPS report, above n 7, p 9; Kreiss, above n 33, at 71; Rubinstein, above n 39, at 905–907.

54 CoE report, above n 2, p 19.

55 Gorton, above n 28, at 72.

56 ELC, above n 3, para 24.

57 The following is limited to elections to the UK Parliament and national referendums.

58 For the 2017 general election this was set at £8,700 plus 6–9 pence per registered parliamentary elector.

59 The powers of the Electoral Commission were augmented by Political Parties and Election Act 2009.

60 ie £30,000 for each seat (PPERA, Sch 9).

61 This data was extracted from the ELC's online database of political spending: http://search.electoralcommission.org.uk/Search/Spending?currentPage=1&rows=20&sort=TotalExpenditure&order=desc&tab=1&et=pp&includeOutsideSection75=true&evt=ukparliament&ev=3568&optCols=ExpenseCategoryName&optCols=AmountInEngland&optCols=AmountInScotland&optCols=AmountInWales&optCols=AmountInNorthernIreland&optCols=DatePaid.

62 Particularly ‘Market research/canvassing’ (£7,364,272) and ‘Unsolicited material to electors’ (£13,402,325).

63 Significant changes were made under the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014.

64 The limits for Scotland, Wales and Northern Ireland are £10,000.

65 Specific rules were implemented under the European Union Referendum Act 2015.

66 Eg the Labour Party had a spending limit of £5.5m (based on 29% of the vote in the 2015 general election). The Conservative Party did not register a preferred outcome, so was not entitled to spend on the campaign.

67 ELC Report on investigation into payments made to Better for the Country and Leave.EU (1 November 2018).

68 ELC Report on the regulation of campaigners at the referendum on the UK's membership of the European Union held on 23 June 2016 (March 2017) p 41. For further evidence of a substantial shift away from spending on traditional advertising to social media (in particular, Facebook), see Tambini, above n 16, p 278 (on the EU referendum), and Anstead, above n 30 (on the 2015 general election).

69 ELC, above n 3, p 4, chart 1. This is likely to be under-reported as it refers only to direct expenditure on digital platforms.

70 Communications Act 2003, ss 319(2)(g) and 321(2).

71 Communications Act 2003, s 321(3)(f).

72 Communications Act 2003, s 333. The right to a party political broadcast extends only to parties registered with the ELC, and referendum broadcasts are only made available to the designated lead campaigners (PPERA, ss 37 and 127, respectively).

73 (2013) 57 EHRR 21.

74 For a discussion see Lewis, T ‘Animal Defenders International v United Kingdom: sensible dialogue or a bad case of Strasbourg jitters?’ (2014) 77(3) MLR 460CrossRefGoogle Scholar; Rowbottom, J ‘Animal Defenders International: speech, spending, and a change of direction in Strasbourg’ (2013) 5(1) JML 1Google Scholar. The ban was challenged before the House of Lords: R (on the application of Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15, [2008] 1 AC 1312 (for a discussion see T Lewis and P Cumper ‘Balancing freedom of political expression against equality of political opportunity’ (2009) Public Law 89).

75 There were several cases decided before ADI which appeared to suggest a general prohibition could not be justified (especially, VgT Verien gegen Tierfabriken v Switzerland (2002) 34 EHRR 4 and TV Vest As & Rogaland Pensjonistparti v Norway (2008) 48 EHRR 1206). The former case caused particular problems for the Government during the passage of the Communications Bill (Lewis, ibid, at 464).

76 The rule applies to both candidates and to political parties and registered third party campaigners (RPA, s 110 and PPERA, s 143). As the rules are substantially aligned, the following focuses on the PPERA requirements only.

77 PPERA, s 143A(1). This provision has not been commenced for Northern Ireland.

78 PPERA, s 143A(1)(b).

79 PPERA, s 143A(2)(b).

80 PPERA, s 143(2). The name and address of the printer of the material must also be included.

81 PPERA, s 143A(4).

82 PPERA, s 126.

83 There were 14 cases investigated between 2012 and 2018, see https://www.electoralcommission.org.uk/sites/default/files/pdf_file/Cases-publication.pdf.

84 PPERA, s 143; RPA, s 110.

85 See also DCMSC interim report, above n 4, para 48.

86 ELC, above n 3, para 50.

87 Spending could be ‘hidden’ in other categories of spending (such as advertising agencies, market research etc) (CoE report, above n 2, p 17; UCL Constitution Unit Report of the Independent Commission on Referendums (July 2018) (hereafter ICR) para 14.16).

88 ELC, above n 3, para 67. It does count towards non-party campaigners and candidates’ spending limits.

89 Ibid, paras 68–69.

90 Ibid, para 71. ELC is currently drafting statutory codes of practice which clarify the position, see https://www.electoralcommission.org.uk/sites/default/files/pdf_file/Political-parties-code-of-practice.pdf.

91 ELC, above n 3, para 66. ‘Organic reach’ is where a campaign message or advert is received by supporters who share the message further with their online contacts.

92 ELC, above n 3, para 28.

93 ELC, above n 3, paras 105–106. The ELC's investigatory powers are enumerated in PPERA, Sch 19B.

94 Ibid, para 107.

95 Ibid, para 115. It should be noted, however, that criminal offences can be referred to the police and on conviction do carry significant penalties, including potential imprisonment.

96 Ibid, para 116.

97 PPERA, s 54 (on permissible donors to parties); PPERA, s 88 (on permissible third party campaigners).

98 ELC, above n 3, para 87.

99 ICR, above n 87 para 14.13; ELC, above n 3, para 84.

100 ELC, above n 3, para 86.

101 Ibid, para 86. The relevant minimum in the 2017 general election was £20,000 (for England). The ICR makes a similar point in relation to referendums (ICR, above n 87, para 14.15).

102 For evidence of potential/alleged Russian interference in the EU referendum see DCMSC interim report, above n 4, ch 5.

103 ELC, above n 3, paras 88–89.

104 Ibid, para 90.

105 Ibid. In the Irish May 2018 referendum, Facebook banned campaigners from outside Ireland buying referendum adverts, and Google banned all paid adverts connected with it (ibid, para 121).

106 A Hern and J Waterson ‘Facebook delays identity checks on UK political advertisers’ (The Guardian, 7 November 2018).

107 A Hern ‘Facebook to require proof that political ads come from UK’ (The Guardian, 29 November 2018). The information includes proof of UK (or EU) nationality (eg a passport) and a UK postal address, Facebook ‘Getting authorised to run ads related to politics or issues of national importance’ (no date): https://www.facebook.com/business/help/208949576550051.

108 The Secretary of State has a power to extend the imprint rule to digital media (PPERA, s 143(6)).

109 Law Commission, Scottish Law Commission, Northern Ireland Law Commission Electoral Law: A Joint Interim Report (4 February 2016), p 156 available at https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2016/02/electoral_law_interim_report.pdf. The Law Commission was only considering reform to RPA (it determined that PPERA and national campaign rules would not form part of its review given the politically contentious nature of the issues).

110 DCMSC final report, above n 4, para 211. Baroness O'Neill has introduced a Private Members’ Bill that requires the Government to extend the imprint requirement to digital communications, see https://services.parliament.uk/bills/2017-19/electionsandreferendumsadvertising.html.

111 Committee on Standards in Public Life Intimidation in Public Life Cm 9543, December 2017, p 61.

112 Cabinet Office Protecting the Debate: Intimidation, Influence and Information: Responding to electoral recommendations and issues raised in the Committee on Standards in Public Life's report on Intimidation in Public Life (July 2018) pp 40–50.

113 Cabinet Office Protecting the Debate: Intimidation, Influence and Information, Government response (2 May 2019) pp 32–37 (hereafter ‘Government response’).

114 Electoral Reform Society Protecting the Debate: Intimidation, Influence and Information: consultation response (18 October 2018).

115 Scottish Independence Referendum Act 2013 (Scotland), Sch 4, para 27.

116 ELC Scottish Independence Referendum (ELC/2014/02, December 2014) pp 110–111.

117 Cabinet Office, above n 112, para 10.39.

118 Law Commission, above n 109, para 11.76. For example, the requirement could be satisfied by including the imprint in the SMP biography rather than in the message itself. PPERA contains such a defence for the current imprint rule (s 143(10)).

119 Cabinet Office, above n 112, para 10.33.

120 Ibid, p 46, Question 28.

121 Government response, above n 113, pp 33–34.

122 Cabinet Office, above n 112, paras 10.44–10.45.

123 Government response, above n 113, p 34.

124 Cabinet Office, above n 112, para 10.48.

125 Ibid, p 48, Question 33.

126 Government response, above n 113, p 36.

127 Cabinet Office, above n 112, para 10.46, Questions 30 and 31. The DCMSC has encouraged the government to consider the feasibility of ‘clear, persistent banners on all paid-for political adverts and videos’, indicating their source (DCMSC final report, above n 4, para 211).

128 Government response, above n 113, p 35.

129 LC, above n 109, para 11.74.

130 Ibid, para 11.81.

131 Cabinet Office, above n 112, p 49, Question 34.

132 Government response, above n 113, p 37.

133 Cabinet Office, above n 112, p 47, Question 32.

134 See https://www.congress.gov/bill/115th-congress/senate-bill/1989/text. Proposals for similar legislation in Ireland have recently stalled: M O'Halloran ‘Government defeated on online advertising and social media Bill’ (The Irish Times, 14 December 2018).

135 For background see https://www.fec.gov/updates/nprm-internet-communication-disclaimers-definition-public-communication-2018/.

136 EU CoP, above n 6, II.B.3.

137 Ibid, II.B.4.

138 S Wang ‘Twitter follows Facebook in endorsing senate's “honest ads” act’ (Bloomberg.com 10 April 2018) available at https://www.bloomberg.com/news/articles/2018-04-10/twitter-follows-facebook-in-endorsing-senate-s-honest-ads-act.

139 Facebook ‘How disclaimers work for ads related to politics or issues of national importance’ (no date): https://www.facebook.com/business/help/198009284345835. For a fuller explanation of industry initiatives, see EU CoP, above n 6, Annex 2.

140 ICR, above n 87, para 14.38.

141 A Hern and J Waterson ‘Facebook cracks down on “dark ads” by British political groups’ (The Guardian, 16 October 2018).

142 Facebook ‘About the ad library’ (no date): available at https://www.facebook.com/business/help/2405092116183307.

143 Facebook ‘How are ads related to politics and national issues identified on Facebook?’ (no date): available at https://www.facebook.com/help/180607332665293.

144 The information will include: the number of ‘impressions’ (as a range); the amount spent (as a range); demographic information (age and gender); and the location of those who viewed the ads. Other platforms are reported to be planning similar measures (Hern and Waterson, above n 141); for information on Twitter see https://blog.twitter.com/official/en_us/topics/company/2018/Providing-More-Transparency-Around-Advertising-on-Twitter.html.

145 EU CoP, above n 6, II.B.

146 ICR, above n 87, para 14.12.

147 Ibid, para 14.43.

148 DCMSC interim report, above n 4, para 142; DCMSC final report, above n 4, para 215.

149 DCMSC interim report, above n 4, para 144. The ICR stresses that any database would need to be searchable and have detailed comprehensive information (ICR, above n 87, para 14.39).

150 ELC, above n 3, para 61.

151 For a fuller exposition and critique of the Court's case law see Rowbottom, above n 74; Lewis, above n 74.

152 TV Vest, above n 75, at [66].

153 ADI, above n 73, at [101].

154 Zuiderveen Borgesius et al, above n 29, at 92. Article 10 protects ‘the means of transmission or reception since any restriction imposed on the means necessarily interferes with the right to receive and impart information’ (Autronic AG v Switzerland (1990) 12 EHRR 485 at [47]).

155 TV Vest, above n 75, at [70]; VgT, above n 75, at [73].

156 ADI, above n 73, at [108] and [114]–[116].

157 Ibid, at [108]. The risk of abuse in this context was relaxation of the prohibition, to allow political advertising by social advocacy groups outside of an election period might give rise to the risk that ‘wealthy bodies with agendas being fronted by social advocacy groups created for that precise purpose’, thereby circumventing the financial caps on advertising (ibid, at [122]). This is something of a false argument, since expenditure outside of the regulated period does not count towards party election expenditure.

158 Ibid, at [108] (authorities omitted).

159 Ibid, at [108] and [110].

160 Ibid, at [119] (authorities omitted).

161 Ibid, at [119]. See also R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15 at [30] per Lord Bingham.

162 Neill Committee, above n 1, para 13.35. It recommended that the ELC keep the rules under constant review (ibid, 183, Recommendation 97).

163 ibid, p 176, Recommendation 94. For a similar view see Rowbottom, above n 74, at 12–13.

164 ICR, above n 87, para 14.35.

165 Zuiderveen Borgesius et al, above n 29, at 94. The facts of the TV Vest, above n 75, were very close to those of ADI. The former involved the application of a general broadcast ban to a small political party, vitiating the justification for the measure, namely to prevent a potential distortion of the democratic process by powerful financial interests.

166 Bowman v UK (1998) ECHR 4 at [42].

167 Ibid, at [43].

168 DCMSC interim report, above n 4, para 141; IPA Written Evidence Submitted by the Institute of Practitioners in Advertising (FKN0093, June 2018) para 16 available at http://data.parliament.uk/WrittenEvidence/CommitteeEvidence.svc/EvidenceDocument/Digital,%20Culture,%20Media%20and%20Sport/Fake%20news/written/84205.html.

169 Ibid, para 14.

170 ICR, above n 87, para 14.31.

171 Ibid, para 14.32.

172 Ibid, para 14.33.

173 Ibid, p 187, Recommendation 61.

174 DCMSC interim report, above n 4, para 50; see also DCMSC final report, above n 4, para 216.

175 DCMSC interim report, above n 4, para 50.

176 Ibid, para 141.

177 The UK Statistics Authority can complain to campaigners if it thinks they have misrepresented official statistics in their campaign materials.

178 Note that it is an offence to make or publish a false statement of fact about the personal character or conduct of a candidate (RPA, s 106). This is narrowly constructed; the provision does not reach allegations political in nature, and so it is not discussed further here.

179 ELC, above n 3, para 34.

180 See ASA CAP Code, clause 7.1 available at https://www.asa.org.uk/type/non_broadcast/code_section/07.html.

181 The exemption applies to claims in marketing communications ‘whose principal function is to influence voters in a local, regional, national or international election or referendum’ (ibid, clause 7.1). This exemption is interpreted broadly and applies outside of electoral periods.

182 Home Office The Funding of Political Parties in the United Kingdom: The Government's proposals for legislation, in response to the Fifth Report of the Committee on Standards in Public Life, Cm 4413, July 1999, para 9.8.

183 ASA ‘Why we don't cover political ads’ (ASA and CAP News, 15 August 2019) at https://www.asa.org.uk/news/why-we-don-t-cover-political-ads.html'.

184 Government response to Neill Committee, above n 182, para 9.8.

185 Neill Committee, above n 1, para 13.24, Recommendation 96.

186 Government response to Neill Committee, above n 182, para 9.9.

187 Ibid, para 9.10.

188 ELC Political Advertising: Report and Recommendations (June 2004) available at https://www.electoralcommission.org.uk/sites/default/files/pdf_file/Political-Advertising-report-and-recommendations-June-2004.pdf.

189 Ibid, p 4.

190 The Conservative Party stated that it would not abide by a code, while Labour did not respond to the consultation (ibid, pp 4–5).

191 I White et al Referendum Campaign Literature Commons Briefing papers CBP-7678, September 2016, pp 11–12, p 15; M Sweney and J Plunkett ‘Ad watchdog powerless to act on controversial Brexit campaigns’ (The Guardian, 28 June 2016).

192 Eg GfK Political finance regulation and digital campaigning: a public perspective (24 April 2018) pp 39–42.

193 DCMSC interim report Oral evidence: Disinformation and ‘fake news’, HC 363, 6 November 2018, Q4103.

194 Ibid, Q4102.

195 ICR, above n 87, para 14.26.

196 Commission Communication, above n 5, p 9.

197 White et al, above n 191, pp 17–18.

198 Eg Coalition for Reform in Political Advertising (cited by DCMSC final report, above n 4, para 209).

199 J Braithwaite ‘On speaking softly and carrying big sticks: neglected dimensions of a republication separation of powers’ (1997) 47(3) The University of Toronto Law Journal 305.

200 ELC, above n 3, para 125.

201 House of Commons Digital, Culture, Media and Sport Committee Disinformation and ‘fake news’: Final Report: Government Response, HC 2184, 9 May 2019, pp 10 and 12.

202 HM Government Online Harms White Paper Cm 57, April 2019.

203 Ibid, para 7.28.

204 Ibid, para 6.5.

205 European Commission ‘A Europe that Protects: The EU steps up action against disinformation’, Press Release (5 December 2018) available at http://europa.eu/rapid/press-release_IP-18-6647_en.htm.

206 European Commission ‘Statement on the Code of Practice against disinformation: Commission asks online platforms to provide more details on progress made’ Statement, 28 February 2019 available at http://europa.eu/rapid/press-release_STATEMENT-19-1379_en.htm.

207 For a summary of progress see https://ec.europa.eu/digital-single-market/en/news/76092/76079.

208 European Commission Report on the implementation of the Action Plan Against Disinformation, JOIN(2019) 12 final (14 June 2019).

209 Bennett, CJ ‘Voter databases, micro-targeting, and data protection law: can political parties campaign in Europe as they do in North America?’ (2016) 6(4) International Data Privacy Law 261CrossRefGoogle Scholar; EDPS report, above n 7, pp 13–16; Zuiderveen Borgesius, above n 29, at 90–91.

210 Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (OJ [2016] L 119 1).

211 GDPR, Art 9(2)(a), (d), (e).

212 GDPR, Art 9(2)(g) and Recital 56.

213 ICO Guidance on political campaigning (28 March 2018) paras 79–82.

214 EU Commission Free and Fair elections: Commission guidance on the application of Union data protection law in the electoral context COM(2018) 638 final (12 September 2018) p 6.

215 EDPB Statement 2/2019 on the use of personal data in the course of political campaigns (13 March 2019). See also ICO Guidance, above n 213, paras 76–82.

216 Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector (as amended by Directive 2009/136/EC). The Directive is implemented in the UK pursuant to the Privacy and Electronic Communications Regulations (PECR) SI 2003/2426 (as amended).

217 Art 13; ICO Guidance, above n 213, paras 12–14. See also EDPS, above n 7, p 14. The ICO relied upon the decision of the Information Tribunal in Scottish National Party v Information Commissioner (EA/2005/0021, 15 May 2006).

218 Art 5(3).

219 Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications) COM/2017/010 final. The latest version of the Regulation emerging from the Council is available at https://data.consilium.europa.eu/doc/document/ST-7099-2019-INIT/en/pdf.

220 On the (initial) draft proposal see WG Voss ‘First the GDPR, now the proposed ePrivacy regulation’ (2017) 21(1) Journal of Internet Law 3; Article 29 Working Group Opinion 01/2017 on the Proposed Regulation for the ePrivacy Regulation (2002/58/EC) (12 February 2018).

221 Zuiderveen Borgesius, above n 29, at 91; Bennett, above n 209, at 275.

222 For a summary of ICO enforcement action see https://ico.org.uk/action-weve-taken/investigation-into-data-analytics-for-political-purposes/.

223 DCMSC Oral evidence: Fake News, HC 363, 6 November 2018, Q4011, Elizabeth Denham. The ICO is also consulting upon a code of practice, see https://ico.org.uk/about-the-ico/ico-and-stakeholder-consultations/call-for-views-code-of-practice-for-the-use-of-personal-information-in-political-campaigns/.

224 M Zuckerberg ‘The internet needs new rules. Let's start in these four areas’ (The Washington Post, 30 March 2019).

225 Kreiss, D ‘Micro-targeting, the quantified persuasion’ (2017) 6(4) Internet Policy ReviewGoogle Scholar available at https://policyreview.info/articles/analysis/micro-targeting-quantified-persuasion.

226 For an overview of the evidence in the US, see Kalla, JL and Broockman, DE ‘The minimal persuasive effects of campaign contact in general elections: evidence from 49 field experiments’ (2018) 112(1) American Political Science Review 148CrossRefGoogle Scholar.

227 For an overview of the literature see Motta, MP and Fowler, E ‘The content and effect of political advertising in US campaigns’ in Thompson, WR (ed) Oxford Research Encyclopedia of Politics (Oxford: Oxford University Press, 2016)Google Scholar.

228 IPA ‘IPA to call for moratorium on micro-targeted political ads online’ Press Notice 20 April 2018 available at https://ipa.co.uk/news/ipa-to-call-for-moratorium-on-micro-targeted-political-ads-online.

229 Zuiderveen Borgesius et al, above n 29, at 96.