Political advertising

The Electoral Commission works to support well-run and fair elections and referendums in the UK; political advertisements are a fundamental part of any democratic system and can inform voting intentions. It is the Electoral Commission’s responsibility to monitor and enforce election rules about where the money behind campaigns comes from and how it is spent, including money spent on advertising. It will investigate where offences may have been committed.

Generally speaking, the Advertising Standards Authority (ASA) regulates in the UK advertising, sales promotions and direct marketing across all media, including marketing on websites. It does this by enforcing the Advertising Codes; there are separate codes for non-broadcast advertisements (known as the CAP Code) and broadcast advertisements (known as the BCAP Code). However, political advertising is treated differently.

The Communications Act 2003 prohibits “political advertisements” from being broadcast on television or radio; instead parties are given airtime via party political broadcasts which are not classified as advertising. This legislation is enforced by Ofcom.

In respect of non-broadcast advertisements (such as ads in leaflets, in newspapers or on social networking sites), the ASA’s remit does not extend to adverts whose principal purpose is to influence voters in a local, regional, national or international elections or referendums. Such political ads are exempt from the CAP Code. Instead, complaints about political advertising should be made directly to the party responsible for that advertising.

This was not always the case. Before October 1999, some non-broadcast political advertising was subject to the CAP Code. However, following the 1997 General Election, there were concerns that the impartiality of the ASA’s self-regulatory system could be damaged by rulings for or against political parties, and the likelihood that complaints subject to ASA investigation would be ruled upon after an election had taken place. The Human Rights Act 1998 also raised concerns about the legality of the ASA restraining the freedom of political speech around democratic elections and referendums.

The “Neill Committee on Standards in Public Life” considered the issue of political advertising and concluded in its 1998 report that the best option was for political parties to adopt a new code of practice. The Electoral Commission undertook to examine again the case for a code and issued a consultation paper in October 2003. Its report, “Political advertising – report and recommendations” was published in 2004. Whilst identifying as a priority the need to promote and protect the interests of the electorate, the Electoral Commission was not in favour of establishing a new separate code, arguing that any regulation of political advertising would need to be voluntary. More recently, the Electoral Commission has considered the risks and challenges that digital campaigns bring to the UK’s election and referendum rules. Its report was published on 1 June 2018.

This House of Commons briefing paper provides an overview of the current regulation of political advertising in the UK. In the process, it also considers in detail the rationale for the ASA’s exemption for political advertising.