We have analogue electoral law in a digital age. The furore over the role of the internet in political campaigning is fueled by a mix of genuine fears, honest misunderstandings, partisan loyalties, and naked opportunism. There are some dangers in untrammelled panic, too.
The first is that the UK might forget, and thereby fail to capitalise on, the huge democratic opportunities of modern technology, and the uplift in human knowledge and popular engagement which it offers.
The second is that we might indulge in overkill, and end up harming fundamental liberties like free expression as well as hobbling the potential for tech-driven economic growth. Harmful at home, that would be deadly abroad, handing an instant excuse to tyrants the world over to ignore criticisms of online censorship.
And the third, somewhat ironically, is that the ensuing fluster offers an additional opportunity for hostile actors – domestic extremists, foreign powers who wish us ill – to undermine our institutions, principles, and faith in one another as fellow citizens of a democracy.
The latter risk was all too visible yesterday, when The Observer’s Carole Cadwalladr somehow ended up sharing a conspiracy theory that the Labour racism scandal is being driven by “bots & trolls fabricating Labour anti-semitic messages to fan this dispute” – itself apparently an instance of fake news.
These dangers might not matter too much if electoral law was completely up to date and up to the job. But it is not. Legislation which was outdated even when introduced has become more so with the development of new media, and as campaigners adapt their tactics to make the most of the playing field which legislation marks out for them.
The difficulty the Electoral Commission has in addressing even quite well-documented real-world scandals like that in Tower Hamlets is all-too clear. The development of new and severe threats to our democracy requires not simply that the Commission get better at its job, but that the rules for which it is responsible also be updated. Otherwise it risks becoming a suit of armour in the age of the machine gun – worse than useless.
Properly updating electoral law would be a huge undertaking, attracting a great deal of debate and also efforts by some to try to bake in a partisan advantage. Readers will no doubt be relieved to hear that I don’t propose to present a single solution to the whole issue in this article, but to identify and explore some of the key areas that debate will cover.
‘Fake News’
What, exactly, is it? Even the DDCMS Select Committee’s report on the topic this week struggled to produce a clear and consistent definition. The fact that the term was made famous when Donald Trump used it to denounce legitimate reporting that he disliked ought to strike a note of caution when people dish out cheap pledges to “ban fake news”. How would attempts to do so avoid becoming a tool of partisan censorship? If, like Frodo Baggins, I convince myself I can handle such power without corruption, does that make it wise to legitimise it for others to use? As we’ll see below, is it even possible to distinguish any longer between different rules for ‘news’ and ‘campaigning’, when every campaigner makes their own news and news outlets now campaign?
Campaign ‘lies’
There is obvious overlap between this concept and fake news, but it deserves its own distinct category, covering the allegation political campaigns themselves tell lies beyond what ‘fake news’ outlets might report. This has become a furious obsession for various people in conflicting corners of British politics, though it is hardly a new phenomenon. We may well see efforts to enshrine a requirement for truth in law – but again the question must be asked: who will be the arbiter of such truth? The whole of politics exists because people have conflicting ideas around what is true about the country, the world, human nature, economics, history, and so on and so on. As it stands, the law forbids “any false statement of fact in relation to [a] candidate’s personal character or conduct” (as Phil Woolas discovered), but also exempts political communication from the usual tests of Advertising Standards law. Is that an effective balance, forbidding damaging falsehoods about people, but keeping state quangos and the law out of the invidious position of having to arbitrate the “truth” of one position or another? How can be arbitrate between pressure to “do something” about claimed lies and concerns that regulating political truth is nigh-on impossible, or the impact on free expression? The modern world is full of accepted truths that, when first proposed, were denounced as falsehoods and loathed for breaching taboos. Expanding or even automating fact-checking presents its own issues: who fact-checks the fact-checkers? Are algorithms truly unbiased, or are they prone to simply automate bias built into them by their creators, knowingly or unknowingly?
Micro-targeting
Oddly, Damian Collins’ report bundled the tactic of micro-targeting messaging in with ‘fake news’, further confusing it with the question of false commercial endorsements for some reason. As ConservativeHome has reported, in the UK as well as in all other developed countries all sides have sought to harness the potential of digital campaigning to better focus what they say and to whom online. Any new development deserves scrutiny and study, and micro-targeting suffers from a mix of technical illiteracy on the part of many in politics, deliberate obscurantism and over-claiming on the part of techy practitioners, and plenty of hyperbole about the mythical power of ‘dark ads’. How can the issue be explored in a way that overcomes those conflicting obstacles? Is this really a wholly new field, or is it a new method of the age-old essence of campaigning, namely finding out what might change someone’s mind then talking to them about it? Is the method illegitimate in itself, or is it neutral – like the concept of the leaflet or a canvassing call? What of the democratic cost of forbidding campaigners from using a tool to engage an insufficiently engaged electorate?
Data rights
Obviously, being able to micro-target online requires the targeter to know things about the audience. Such operations are hugely data-hungry – that’s why Labour runs endless data-gathering petitions through its own platforms, and why the Conservative Party did a ‘Love Island’ themed giveaway this week. Is that unethical, even if currently legal? Are people aware of the value and uses of the data that they give away? Do they have sufficient legal powers to control their data? We know from the Cambridge Analytica/Facebook scandal that data is now such a valuable commodity that some are willing to go to nefarious lengths to obtain and misuse it, and that social media platforms, among other new innovations, offer unparalleled opportunities to do both. What new responsibilities for companies, powers for regulators (information or electoral commissions), and rights for individuals, might obstruct such illegitimate uses of people’s data for political purposes? Unchecked assurances evidently aren’t up to the job. At the same time, cab such obstructions be targeted to disrupt activities we don’t want (like data theft) without blocking ones we do (like mass medical research)?
Attributing online material
Every leaflet, poster and so on must have an imprint declaring who produced it and for which campaign, normally in tiny font in a corner. That law is sometimes broken, but broadly obeyed. The system is different for online campaigning, and understanding is even more haphazard – it’s routine to see imprints on websites and email footers, but not on social media. At one time there were suggestions that individual tweets might need an imprint – something which would be impractical even under longer character limits. Some candidates squeeze imprints into their Twitter or Facebook bios, others link to them, and some don’t include them at all. Carole Cadwalladr appears to have wrongly believed Facebook adverts need imprints, which Dominic Cummings has pointed out to her is incorrect. There is a reasonable question about who is behind the creation of, and promotion of, online adverts. As Cummings argues, the content of any advert or promoted post has an owner – the person or page who originated the content. That informs voters when the originator is legitimate. But is such information enough, given there have been cases in the US of pages posing as American campaigns which are actually run from Russia? For that matter, given an advertiser can promote content posted by others, what protection is there against the content of a genuinely British campaign being artificially boosted by other, anonymous and potentially hostile actors? Some have proposed compulsory disclosure of the location of those behind pages, posts and adverts – but a) it’s obviously possible to get around such a simple rule, and b) that in itself could invite unintended consequences. For example, if someone wished to discredit their legitimate opponents, how easy it would be to spend £10 getting their material promoted via an IP in Russia – pose as a false friend and let the new ‘transparency’ mechanisms demolish your opponent. When dealing with clever people and high stakes, unintended consequences of new regulation require careful thought and testing.
Who is a ‘campaigner’?
Underlying many of these issues is the fact that social media has led to a vast extension and fundamental change in who has a significant and influential voice in our politics. Individuals, formal and informal pressure groups, sites like ConservativeHome, journalists, activists, academics – all these and more have greater political and media clout, often to sizeable audiences. Can electoral law continue to try to draw distinctions between media and political campaigns? Is a comedian posting an online rant to millions for or against a politician acting as a publisher, a lobbyist, a participant in electoral campaigning, a media outlet, or just, well, a comedian? Can a candidate really be held responsible for the decision of someone they have never met to expend resources supporting them – and should Facebook’s advertising department have compliance responsibilities akin to those imposed on a candidate’s agent? To what degree is a candidate responsible for third-party groups whom they know and encourage to work in their support? At what point does a company or charity or university professor arguing for or against a change in the law find that they have become political in the eyes of the regulator? Can they know this beforehand, or does it apply retroactively if they go viral? Are massively funded legal cases with political aims and accompanying media coverage a form of campaign, or not? Is a political campaign allowed to say things under the exemption from advertising standards that other actors would not be allowed to say about the same topic? Even relatively new legislation gets all this into a clumsy muddle – the Lobbying Act infamously cast its net so widely, so vaguely and so outdatedly that it potentially restricts the right of sites like this one, clearly a media outlet, to publish things that would be completely fine if done by a hard-copy newspaper. The Act needs to be revisited, and a consistent definition of campaigning must be found and applied, or else the law will be ineffective against activities it ought to restrain and overly restrictive of activities it ought to facilitate.
Foreign donations
The UK has long had strict rules against foreign donors being able to finance politics, and for good reason. But they, too, risk being outmanoeuvred. The above questions about who or what constitutes a political campaign matters a great deal – if we are worried about influence being exerted beyond the traditional channels of parties, where the rules are quite tight, to what extent should there be oversight of money flowing to campaigning charities and pressure groups, for example? Is it still enough to impose tight oversight of registered campaign participants during election time, or should rules apply in peacetime, too? Is blanket transparency desirable or practical, or would it chill debate and even place people in danger? New technology provokes new questions, too – I wrote last year about the loophole by which a foreign donor could finance a cause in the UK anonymously and without any checks, so long as they divide their cash into chunks below £499 and spread it across technically distinct but practically allied organisations. There are also questions about more old-school attempts to get round the law. As long as donors have been regulated, there have been efforts to channel money via people who look permissible – foreign citizens giving to parties via family members or even employees, who thereby appear on the register as legitimate when the money hasn’t truly originated from them. Such allegations are rearing their head again, including about Russia allegedly seeking to exert influence via favourable business dealings with some of its own expats and citizens of the nations that it wishes to target. Can transparency rules on donors be beefed up? To what extent is it really possible to trace back cash to a single origin? Are we sufficiently armoured against effective financial infiltration of our politics? Again, how do we make restrictions effective but proportionate – should our system simply ban donations from Brits who do business in particular countries, for example?
A cap on donations
This site has been writing for a long time about the possibility and desirability of some form of upper limit on donations. Paul Goodman has argued that the Conservative Party should get out ahead of the regulators and voluntarily impose a £50,000 donation cap on itself. When we last tested it in 2015, just under 40 per cent of Party members thought such a rule ought to be introduced in law. In addition to the question of who donates, how much they donate is inevitably and justifiably up for debate. Is it healthy to have a reliance on a small number of very large donors? Is it a breach of property rights to forbid people from using their money as they wish? Is there simply a ‘smell test’ by which big donations harm faith in our democracy? How would such a cap work in an age of crowdfunding – would an organisation that raised £100,000 from 50,000 donors not be allowed to give the money, as it would have become a lump sum? If that was allowed, would a union, pressure group, or pension fund be deemed to be giving lump sums as one entity, or a collection of small donations on behalf of its members? If large donations were to be restricted, are there other changes that could be made at the bottom end of the donor scale to encourage the parties to raise more from a wider base of smaller donors. Or should our politics just get by at a lower cost?
Better watchdogs
Lastly, as I’ve written before, in an age of foreign and domestic threats to our democratic process, we need to look at how to give our watchdogs better eye-sight and a sharper bite. Cultural and personnel change at the Electoral Commission, to make it a more effective and impressive body, might take time, but there are other practical changes that might be pursued. In addition to all the above questions, here are a few more: How severe should fines and other penalties for electoral offences be? What measure is there to ensure the punishment is proportionate to the crime? How should legal culpability flow through organisations to individuals, and even across borders? What responsibilities do platforms have to prevent crimes being committed in the digital ‘space’ they provide? Is the system of election courts fit for purpose? How can the police be better educated and informed about the laws which are intended to protect democracy? Who ought to have oversight of the Commission and its work, and who could be trusted to use such power fairly and responsibly? What underpinning guarantees are there to preserve fundamental rights like freedom of expression?