The Oxford Internet Institute’s Technology and Elections Commission (OxTEC) has published a report on political advertising. It examines the scope of the current law concerning political campaigning and the regulatory gaps in this area. The report also sets out a series of future recommendations for policymakers designed to improve the regulation of political campaigning in the digital age.
The report states that the Cambridge Analytica scandal has brought digital campaigning to the fore, particularly issues concerning how such campaigning should be regulated. The growth of digital campaigning has not been mirrored by a development in the legislation governing such campaigning, leading to legitimate fears of undue influence in democratic processes. There is no single regulator covering digital political campaigning (and the necessity of a single regulator is questionable). As a result, the report addresses the various legislative regimes in place and the various regulators that exist, including data protection, electoral rules and advertising laws.
The report makes the following recommendations:
- A public consultation should be held so that measures and codes can be put in place that adequately control the conduct of political campaigns, including data processing generally. The Information Commissioner has launched such a consultation on a code of practice for political data, but according to the report, regulations on data use will never be enough alone. Given the pressing issues identified and the need for considerable expertise, the report states the view that Ofcom is well placed to take this role and there is no need for a new regulator to be created.
- Donation transparency: shortcomings in the current regulations on spending must be addressed, with legislative clarification urgently required.
- Spending transparency: meaningful transparency on spending is required to cure issues relating to tracking of spending.
- Article 80(2) GDPR provides for collective and representative actions. The Data Protection Act 2018 has not incorporated this section of the GDPR. However, the ability for appropriate interest groups to act on behalf of groups of individuals would provide real opportunities for the enforcement of data rights.
- Review the exemptions for ‘democratic engagement’ under the DPA 2018 which aims to limit the misuse of political data.
- Campaign messaging transparency: provide clarity on OxTEC’s legislative amendment requiring imprints on digital campaign material so that individuals know the source of the material.
- Extend the timing of regulations beyond the online harms proposal to cover electoral regulations generally.
At the same time, the House of Commons Library has published a briefing on political advertising. It provides an overview of the functions and remit of the Advertising Standards Authority and the current advertising regulatory system. It then considers in detail the rationale for the current exemption from regulation for political advertising.
