Political advertising can inform voting intentions and is a fundamental part of any democratic system. With the general election approaching, a frequent question is who, if anyone, regulates political advertising?
The answer isn’t straightforward. The Communications Act 2003 bans all political advertising 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 strictly enforced by the Office of Communications (Ofcom). Complaints of political bias in television or radio advertising can also be made to Ofcom. However, non-broadcast political advertising (which includes in leaflets and newspapers or on social media sites) is largely exempt from regulation.
This Insight examines how and why non-broadcast political advertising is treated differently.
All adverts must be “legal, decent, honest and truthful”
In the UK, general advertising, sales promotions and direct marketing across all media, is regulated by the Advertising Standards Authority (ASA). All adverts must be “legal, decent, honest and truthful.” As an independent regulator, the ASA enforces the Advertising Codes; there are separate codes for non-broadcast advertisements (known as the CAP Code) and broadcast advertisements (known as the BCAP Code). The two codes have broadly consistent rules that prohibit discriminatory treatment and/or harm and offence.
Advertisements made by companies and third sector bodies (such as voluntary and community organisations)must adhere to ASA rules. However, non-broadcast political advertising which principally aims to influence voters in local, regional, national or international elections or referendums is exempt under rule 7 of the CAP Code and is not regulated by the ASA.
The CAP Code doesn’t specify how voters must be “influenced” nor does it state that an election or referendum must have been called, or that it must be referred to explicitly in the ad.
The ASA bases its assessment on “the nature and function” of the claims within the advert itself. It follows from this that if a non-broadcast advertisement for a product or service makes a topical reference to an election or referendum, but its principal function is to sell the product rather than to influence the election result, the CAP Code may still apply, and the ASA will still regulate it. It is important to note that the same test applies whether the advertisement in question has been published by an individual, a commercial business, a charity, a political party, an interest group or any other type of organisation.
Why are non-broadcast political ads treated differently by the ASA?
This is a relatively new development. Following the 1997 General Election, the Committee of Advertising Practice decided to exclude political advertising from the ASA’s remit. There were concerns that the impartiality of the ASA 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.
A 1998 report, the “Neill Committee on Standards in Public Life” considered political advertising as part of a wider investigation into party funding and recommended that political parties seek to adopt a new code of practice. The Electoral Commission, an independent body which regulates party and election funding, consulted on the issue in 2003. In its 2004 report, Political advertising – report and recommendations, the Commission prioritised the need to promote and protect the interests of the electorate, but argued that any regulation of political advertising should be voluntary – it should remain outside the remit of the ASA.
Are political adverts regulated by electoral law?
Electoral law doesn’t require claims in political campaigns to be truthful or factually accurate, but it is a crime to make or publish a false statement of fact about the personal character or conduct of a candidate.
Campaigners are set limits on the amount of money they can spend during an election or referendum. The same limits apply whether campaigners use long-standing advertising techniques, such as printed mailshots or billboard, or newer ones, such as emails and online adverts.
What about digital advertising and social media?
Unsurprisingly, Electoral Commission statistics show that the proportion of money spent on digital advertising has steadily increased, from 0.3% in 2011 to 42.8% in 2017. But this is not the full picture. Campaigners are also contacting voters for free on social media, potentially reaching wide audiences. The Electoral Commission has considered the risks and challenges that digital campaigns bring to the UK’s election and referendum rules. In its June 2018 report, Digital campaigning- increasing transparency for voters, the Commission made a series of recommendations, including: insisting on imprints on digital campaign material, increasing maximum fines, and giving the Commission greater powers to compel information from third parties.
Some digital and social media companies have voluntarily introduced measures to improve transparency for voters. For instance, Facebook’s Ad Library offers a searchable collection of all ads currently running across its products, whilst Twitter recently announced that it would be banning political advertising globally.
Political advertising, House of Commons Library.
About the author: Lorraine Conway is a Senior Library Clerk at the House of Commons Library.