5Advertising and political campaigning
Introduction
193.The ICO’s investigation into the use of data analytics in political campaigns uncovered “a disturbing disregard for voters’ personal privacy”.218 The ICO makes the forceful point that “citizens can only make truly informed choices about who to vote for if they are sure that those decisions have not been unduly influenced”.219 For that reason, when personal data is used to target political messages, that use should be both transparent and lawful.
194.The Electoral Commission’s Report, “Digital Campaigning: increasing transparency for voters”, published in June 2018, recommends that the law needs to change to ensure “more clarity over who is spending what, and where and how, and bigger sanctions for those who break the rules. Funding of online campaigning is already covered by the laws on election spending and donations. But the laws need to ensure more clarity about who is spending what, and where and how, and bigger sanctions for those who break the rules”.220 This chapter will highlight the difference between general advertising and political advertising and the steps which are being taken to increase transparency in relation to political advertising. It should be read in conjunction with the recommendations in these respects in our Interim Report.
Online adverts
195.Non-political advertising in the UK is regulated by the Advertising Standards Authority (ASA) through a system of self-regulation and co-regulation, funded by the advertising industry. Guy Parker, CEO of the ASA, told us that “the standards we apply through our advertising codes are, almost without exception, the same for broadcast advertising and for non-broadcast advertising including online”.221
196.All non-broadcast advertising, including websites, emails and social media is covered by self-regulation. Co-regulation is the ASA’s shared duty with Ofcom, the communications regulator and broadcast licensing authority. Under this arrangement, the ASA regulates broadcast TV and radio advertising on behalf of, and according to, Ofcom’s broadcasting regulations.222
197.Advertisers that do not comply with ASA standards are subject to sanction. However, the ASA does not have the authority to bring legal action against advertisers who refuse to comply with the Codes. As well as adjudicating on complaints, pressure can be brought to bear by the ASA on companies in the advertising industry which recognise its Codes, and the media, contractors and service providers may decide to withhold services or deny access to space, with the accompanying adverse publicity.223
198.Due to the fact that the ASA is the UK advertising regulator, Guy Parker told us that only UK adverts are under their control, defining a UK advert as “an ad that is targeted at UK consumers”. However, he said that the ASA would “take into account the country of origin of the company that has delivered the ad, for example with direct mailings. It may entail us working with our equivalent in that country if we have a cross-border complaints arrangement with them.”224 There are obvious difficulties connected with that definition, given the fact that such adverts might originate from abroad, or that their origin is unknown.
199.Guy Parker said that Facebook, Google, and other digital companies that make money out of online adverts should be working on removing misleading and fraudulent adverts, and should be contributing financially to the ASA, to improve the systems and processes of regulating online advertising.225
Online political adverts
200.The Electoral Reform Society has recently published “Reining in the political ‘wild west’: campaign rules for the 21st century”, coinciding with the 15th anniversary of Facebook’s launch, and—19 years since the main election rules were created—it has made proposals to ensure proper transparency in campaigning: “the ability to rapidly transmit disinformation and channel millions of pounds into campaigns without scrutiny was far more difficult. So much has changed—yet our campaign rules have remained in the analogue age”.226 The report describes the increase in political parties’ spending on Facebook adverts in the past two general elections: in 2015, it was around £1.3 million; in 2017, it had grown to around £3.2 million.227 This was national expenditure and excluded local constituency expenditure.
201.In June 2018, the Electoral Commission published a chart, highlighting the proportion of money that campaigners have reported spending on digital advertising as a percentage of total advertising spend.228 They explained that the chart does not show the full picture of digital advertising in elections and referenda: “It only contains spending data for the most well-known digital platforms, which registered campaigners have reported to us”. As well as paid digital advertisers, campaigners can also ‘like’, ‘share’, and ‘post’ messages for free, with the potential to reach wider audiences.229
202.Political advertising on television is subject to strict regulation and political parties or organisations cannot hold a broadcast licence, or run a broadcaster or channel. Party political broadcasts have clear rules and regulations, which are overseen by Ofcom, during election periods.230 Non-broadcast political advertising remains unregulated and, as we said in our Interim Report, the ability of social media companies to target content to individuals, and in private, is a new phenomenon, which creates issues in relation to the regulation of elections.231
203.The Electoral Commission described the pernicious nature of micro-targeted political adverts: “Only the voter, the campaigner and the platform know who has been targeted with which messages. Only the company and the campaigner know why a voter was targeted and how much was spent on a particular campaign”.232 Guy Parker, CEO of the ASA, clarified the position surrounding the regulation of such online political advertising:
We do not cover political advertising, which we define as advertising whenever it appears—it does not have to appear in an election period—whose principal purpose is to influence voters in an election or referendum. […] Our system of regulation relies on a substantial proportion of the people we are regulating buying into our regulation. The political parties and big campaign groups have never agreed to comply with our advertising codes.233
204.It is important to recognise the fact that not all political adverts are run by political parties; they can be distributed through groups and through personal contacts, some of which are not paid. Facebook Groups are where people and organisations can share their interests and express an opinion and can be: public, where anyone can see who the Group members and what has been posted; closed, where only those invited to join the Group can see and share the content; or secret, where nobody on Facebook knows the Group’s existence, other than those in the Group. Facebook Pages are always public, created by organisations to engage with their audience and post content, but only administrators of the Pages can post to the account.234
205.On 5 February 2019, Facebook banned four Facebook Groups in Burma, designating them as ‘dangerous organisations’: the Arakan Army, the Myanmar National Democratic Alliance Army, Kachin Independence Army, and the Ta’ang national Liberation Army. They will also ban “all related praise, support and representation” as soon as they “become aware of it”.235
206.Written evidence from Dr Kate Dommett, University of Sheffield, recommends a public register of all political advertising, differentiating between formally-affiliated campaigns (a political party and the companies that are paying to carry out digital advertising) and information campaigns, operating without direct influence of the party. This would “build understanding of the political landscape”.236
207.Our Interim Report supported the Electoral Commission’s suggestion that all electronic campaigning should have easily-accessible digital imprint requirements, including information on the publishing organisation and who is legally responsible for the spending.237 These recommendations were similar to those made by the Committee on Standards in Public Life.238
208.It is especially important to know the origin of political adverts when considering the issue of overseas interference in elections. The geographical source of an advert should be apparent. There is also the need for swift action during the short period of a campaign when false, misleading or illegal political advertising takes place. Delay in taking action increases the possibility of disinformation influencing an outcome.
209.The Coalition for Reform in Political Advertising, which includes representation from the Incorporated Society of British Advertisers (ISBA), the Internet Commission and Econsultancy, has developed a four-point plan for the future of political adverts. The plan recommends that: all factual claims used in political ads be pre-cleared; an existing or new body should have the power to regulate political advertising content; all paid-for political adverts should be available for public view, on a single searchable website; and political advertisements should carry an imprint or watermarks to show the sponsor of the advert.239
210.We repeat the recommendation from our Interim Report, that the Government should look at the ways in which the UK law should define digital campaigning, including having agreed definitions of what constitutes online political advertising, such as agreed types of words that continually arise in adverts that are not sponsored by a specific political party. There also needs to be an acknowledgement of the role and power of unpaid campaigns and Facebook Groups that influence elections and referendums (both inside and outside the designated period).
211.Electoral law is not fit for purpose and needs to be changed to reflect changes in campaigning techniques, and the move from physical leaflets and billboards to online, microtargeted political campaigning. There needs to be: absolute transparency of online political campaigning, including clear, persistent banners on all paid-for political adverts and videos, indicating the source and the advertiser; a category introduced for digital spending on campaigns; and explicit rules surrounding designated campaigners’ role and responsibilities.
212.We would expect that the Cabinet Office’s consultation will result in the Government concluding that paid-for political advertising should be publicly accessible, clear and easily recognisable. Recipients should be able to identify the source, who uploaded it, who sponsored it, and its country of origin.
213.The Government should carry out a comprehensive review of the current rules and regulations surrounding political work during elections and referenda including: increasing the length of the regulated period; defining what constitutes political campaigning; and reducing the time for spending returns to be sent to the Electoral Commission.
214.The Government should explore ways in which the Electoral Commission can be given more powers to carry out its work comprehensively, including the following measures:
- the legal right to compel organisations that they do not currently regulate, including social media companies, to provide information relevant to their inquiries;
- The Electoral Commission’s current maximum fine limit of £20,000 should be increased, and changed to a fine based on a fixed percentage of turnover, in line with powers already conferred on other statutory regulators;
- The ability for the Electoral Commission to petition against an election due to illegal actions, which currently can only be brought by an individual;
- The ability for the Electoral Commission to intervene or stop someone acting illegally in a campaign if they live outside the UK.
215.Political advertising items should be publicly accessible in a searchable repository—who is paying for the ads, which organisations are sponsoring the ad, who is being targeted by the ads—so that members of the public can understand the behaviour of individual advertisers. It should be run independently of the advertising industry and of political parties. This recommendation builds on paragraph 144 of our Interim Report.
216.We agree with the ICO’s proposal that a Code of Practice, which highlights the use of personal information in political campaigning and applying to all data controllers who process personal data for the purpose of political campaigning, should be underpinned by primary legislation. We urge the Government to act on the ICO’s recommendation and bring forward primary legislation to place these Codes of Practice into statute.
217.We support the ICO’s recommendation that all political parties should work with the ICO, the Cabinet Office and the Electoral Commission, to identify and implement a cross-party solution to improve transparency over the use of commonly-held data. This would be a practical solution to ensure that the use of data during elections and referenda is treated lawfully. We hope that the Government will work towards making this collaboration happen. We hope that the Government will address all of these issues when it responds to its consultation, “Protecting the Debate: Intimidating, Influence, and Information” and to the Electoral Commission’s report, “Digital Campaigning: increasing transparency for voters”. A crucial aspect of political advertising and influence is that of foreign interference in elections, which we hope it will also strongly address.
Facebook and Mainstream Network
218.Facebook and Twitter claim to have tightened up on the dissemination of disinformation on their sites. However, during the course of our inquiry, when we commissioned work from 89up, they also looked into the work of ‘Mainstream Network’, a sophisticated, pro-Brexit website, promoted on Facebook, with an advertising spend estimated at £257,000 in just over 10 months during 2018.240 Using Facebook’s tools to access adverts, 89up found over 70 adverts that the site was running at one time. They discovered that Mainstream Network were targeting adverts to specific constituents, encouraging them to send standard emails to their MP. Examples of the adverts including one dismissing the Prime Minister’s ‘Chequers deal’. Whenever a user emails their MP from the site, Mainstream Network puts its own email into the BCC field. This would mean that the user’s data was being stored by the site owner, and could be used for marketing purposes, using Facebook’s ‘Custom Audience’ feature.241
219.In their evidence, 89up reported that Mainstream Network content had reached 10.9 million users on Facebook alone:
The website is highly misleading and contains no information on the authors of the content, nor any legally required information for GDPR compliance. With the level of spending estimated, it is possible this website is in breach of both GDPR and also Electoral Commission rules on non-party campaigners.242
220.It is concerning that such a site is run anonymously, so there is no ability to check the origins of the organisation, who is paying for the adverts and in what currency, and why political campaigns are being undertaken without any transparency about who is running them. Facebook requires political campaigning in the US and in India to be registered as running “ads related to politics or of issues of national importance”, but this is not the case in the UK.243 The ICO is currently looking into the activities of Mainstream Network and whether there was a contravention of the GDPR, in distributing such communications.244
221.In October 2018, Facebook announced new requirements for organisations and individuals placing an advert that features political figures and parties, elections, legislation before Parliament or past referendums. These requirements introduced a verification process, whereby people placing political adverts must prove their identity (by a passport, driving licence, or residence permit), which will be checked by a third-party organisation. Political adverts suspected of promoting misinformation or disinformation can be reported and, if the advert contains ‘falsehoods’, it can be taken down.
222.When Richard Allan, Vice President for Public Policy EMEA at Facebook, was asked about Mainstream Network, during the ‘International Grand Committee’ oral evidence session in November 2018, he said that there was nothing illegal about a website running such adverts, but that Facebook’s changed policy now means that “any organisation that wants to run ads like that will have to authorise. We will collect their identifying information. They will have to put on an accurate disclaimer. Their ads will go in the archive”. When asked who was behind the Mainstream Network account, Richard Allan said:
We would know whose Facebook account it was, and if there were an investigation by an entity that can legally require information, we would provide information in line with normal procedures.245
Our own investigations have shown that Mainstream Network is now no longer running political adverts on Facebook. There is, however, also no access to any adverts that they ran prior to 16 October 2018, as political adverts that ran prior to this date are not viewable. Richard Allan was asked whether he would provide the Committee with details of who was behind the account or, if not, provide us with the reasons why they cannot.246 Mainstream Network is yet another, more recent example of an online organisation seeking to influence political debate using methods similar to those which caused concern over the EU Referendum and there is no good case for Mainstream Network to hide behind anonymity. We look forward to receiving information from Facebook about the origins of Mainstream Network, which—to date—we have not received, despite promises from Richard Allan that he would provide the information. We consider Facebook’s response generally to be disingenuous and another example of Facebook’s bad faith. The Information Commissioner has confirmed that it is currently investigating this website’s activities and Facebook will, in any event, have to co-operate with the ICO.
223.Tech companies must address the issue of shell companies and other professional attempts to hide identity in advert purchasing, especially around political advertising—both within and outside campaigning periods. There should be full disclosure of the targeting used as part of advertising transparency. The Government should explore ways of regulating the use of external targeting on social media platforms, such as Facebook’s Custom Audiences.
224.The rapid rise of new populist, right-wing news sites is pushing conspiratorial, anti-establishment content outside the channels of traditional media. This can be seen in the success, for example, of PoliticalUK.co.uk, which works within a network of sites, social media pages and video accounts. Since its inception at the end of April 2018, according to Tom McTague, PoliticalUK has gained more than 3 million interactions on social media, with an average of 5,000 ‘engagements’ for each story published.247
225.McTague noted in his investigation that PoliticalUK.co.uk’s report ‘Media Silence as tens of thousands protest against Brexit betrayal’, about a rally in Westminster in December 2018 led by the far-right activist Stephen Yaxley-Lennon, also known as Tommy Robinson, received 20,351 interactions on Facebook compared to a more critical report about the same event by the Daily Mail which received just 3,481 interactions. Content from PoliticalUK.co.uk is being promoted by Facebook groups including ‘EU-I Voted Leave’ which is followed by more that 220,000 people. Robinson himself has over 1 million followers on Facebook, making him the second most popular British political figure on the site, after the Labour Party leader, Jeremy Corbyn.
226.However, tools that let the public see the way in which Facebook users are being targeted by advertisers have recently been blocked by Facebook. Evidence we received from Who Targets Me? puts Facebook’s desire for more transparency on its site into question. Who Targets Me? was established in 2017 to help the public understand how they were being targeted with online adverts during the general election. It explains its work, in collaboration with the London School of Economics, the Oxford Internet Institute and Sheffield University:
Our tool can be installed as a browser extension, it then collects data from Facebook users and shows them personalised statistics of how many adverts they have seen. The data is also collated into a master database, that is shared exclusively with researchers and journalists interested in exposing misinformation, election overspending and microtargeting, among other issues. Our tool can be installed as a browser extension, it then collects data from Facebook users and shows them personalised statistics of how many adverts they have seen. The data is also collated into a master database, that is shared exclusively with researchers and journalists interested in exposing misinformation, election overspending and microtargeting, among other issues.248
227.On January 9th, 2014, Who Targets Me? and all other organisations operating in this space, including ProPublica and Mozilla, lost access to this data. Facebook made this change with the purpose of blocking tools that operate to highlight the content and targeting of Facebook adverts. There is now no practical way for researchers to audit Facebook advertising.249
228.The ICO has called for a Code of Practice to be placed in statute, to highlight the use of personal information in political campaigning—following the same codes set out in the Data Protection Act250—including an age-appropriate design code and a data protection and journalism code.251 The ICO anticipates that such codes would apply to all data controllers who process personal data for the purpose of political campaign. The ICO has existing powers under the General Data Protection Regulation (GDPR) to produce codes of practice relating to the Commissioner’s functions, which they intend to do before the next general election.252 But the ICO also feels that such codes should have a statutory underpinning in primary legislation and a consultation on this proposal closed on 21 December 2018. We agree; only by placing such codes of practice on a statutory footing will the processing of personal data be taken seriously.
Constitutional Research Council (CRC)
229.This lack of transparency in political advertising was illustrated by the Constitutional Research Council’s donation during the EU Referendum. The CRC is an unincorporated funding organisation based in Scotland, which contributed to the Democratic Unionist Party’s Leave campaign in Northern Ireland and in England, during the EU referendum. It donated £435,000 to the DUP, the biggest political donation in Northern Ireland’s history, of which £425,000 was spent on advertising in the referendum campaign. Its sole named office holder is its Chairman, Richard Cook. There have been claims that Vote Leave and the DUP were part of a co-ordinated campaign in the EU Referendum, and allegations that Richard Cook’s financial affairs involved fraud relating to waste management.253 The Committee twice wrote to Richard Cook asking him for the source of the £435,000 donation and how it was presumed the money would be spent. We received one reply on 5 November 2018 in which Mr. Cook claimed to be “greatly amused” by the Committee’s letter before accusing us of spreading “fake news and disinformation” about him. He declined however to reveal the source of the money or to say how the Constitutional Research Council believed it was going to be spent.254
230.The Electoral Commission gave evidence on 6 November 2018, and were asked about this donation from the CRC. The then CEO, Claire Bassett, explained that “we are restricted by law on what we can say about any donations made before 2017” and it is a situation “that we do not really want to be in, and it is deeply regrettable”.255 Donations made to political parties in Northern Ireland before July 2017 are protected, namely, from disclosure, under Section 71E of the Political Parties, Elections and Referendums Act 2000. Louise Edwards, Head of Regulations at the Electoral Commission, explained the position:
The Democratic Unionist Party as a registered party in Northern Ireland needed to continue to supply quarterly donation reports to us throughout the referendum period, which it did. We are under a duty to verify the contents of donation reports for Northern Ireland parties and that is a duty we take very seriously and we do it. If we discover that a donation in one of those reports is in fact impermissible, the restrictions […] are lifted and we can talk about that donation. We cannot talk about donations to the DUP from that period because, having verified those reports, the donors on them were permissible256
231.When asked whether there was a common plan between the Constitutional Research Council donating £435,000 to the DUP and booking an advert for £280,000 in the Metro newspaper, in London, on behalf of Vote Leave (within days of the vote), Louise Edwards replied, “There is not a way for me to answer that question that does not put me in breach of the law, I am afraid”.257 When asked whether the money from the CRC donated to the DUP was from the UK, and not of foreign origin (which would make it impermissible in UK law), Claire Bassett replied that “we were satisfied that the donors were permissible”.258 When asked whether they had been told the origin of the money, Louise Edwards and Claire Bassett said, “we are not able to discuss it any further”259 and “we were satisfied that the donors were permissible in UK law”,260 from information verified by “a range of sources”.261 They were also unable, by law, to confirm whether they knew the identity of the person who donated the money.262
232.Donations made to political parties in Northern Ireland before July 2017 are protected from disclosure, under Section 71E of the Political Parties, Elections and Referendums Act 2000. This prevents the Electoral Commission from disclosing any information relating to such donations before July 2017. We concur with the Electoral Commission that it is “deeply regrettable” that they are unable, by law, to tell Members of Parliament and the public about details surrounding the source of the £435,000 donation that was given by the Constitutional Research Council (CRC) to the DUP or the due diligence that was followed. Because of the law as it currently stands, this Committee and the wider public have no way of investigating the source of the £435,000 donation to the DUP made on behalf of the CRC and are prevented from even knowing whether it came from an organisation, whose membership had either sanctioned the donation or not, or from a wealthy individual.
233.There is an absence of transparency surrounding the relationship between the Constitutional Research Council, the DUP and Vote Leave. We believe that, in order to avoid having to disclose the source of this £435,000 donation, the CRC, deliberately and knowingly, exploited a loophole in the electoral law to funnel money to the Democratic Unionist Party in Northern Ireland. That money was used to fund pro-Brexit newspaper advertising outside Northern Ireland and to pay the Canadian-based data analytics company, Aggregate IQ.
234.We support the Electoral Commission in its request that the Government extend the transparency rules around donations made to political parties in Northern Ireland from 2014. This period of time would cover two UK general elections, two Northern Ireland Assembly elections, the Scottish independence referendum, the EU referendum, and EU and local government elections. We urge the Government to make this change in the law as soon as is practicable to ensure full transparency over these elections and referendums.
The Cairncross Review: a sustainable future for journalism
235.As we said in our Interim Report, the then Secretary of State, Rt Hon Matthew Hancock MP, told us that the Cairncross Review would be looking at the role of the digital advertising supply chain, within the broader context of the future of the UK press, at how fair and transparent it is, and whether it “incentivises the proliferation of inaccurate and/or misleading news.” The consultation closed in September 2018263 and the Cairncross Report was published on 12 February 2019.
236.We welcome Dame Frances Cairncross’s report on safeguarding the future of journalism, and the establishment of a code of conduct to rebalance the relationship between news providers and social media platforms. In particular, we welcome the recommendation that online digital newspapers and magazines should be zero rated for VAT, as is the case for printed versions. This would remove the false incentive for news companies against developing more paid-for digital services. We support the recommendation that chimes with our own on investigating online advertising, in particular focussing on the major search and social media companie, by the Competitions and Markets Authority.
218 Investigation into the use of data analytics in political campaigning: a report to Parliament, ICO, 6 November 2018, p6.
219 Same as above.
220 Digital Campaigning: increasing transparency for votes, Electoral Commission, June 2018, p3.
222 ASA website, accessed 5 February 2019.
223 Self-regulation and co-regulation, ASA website, accessed 5 February 2019.
226 Reining in the political ‘wild west’: campaign rules for the 21st century, foreword Rt Hon Dame Cheryl Gillan MP, Electoral Reform Society (ERS) 4 February 2019.
227 Same as above, Dr Jess Garland, Director of Policy and Research, ERS.
228 Digital campaigning: increasing transparency for voters, The Electoral Commission, June 2018, p4.
229 As above.
231 Disinformation and ‘fake news’: Interim Report, DCMS Committee, Fifth Report of Session 2017–19, HC 363, 29 July 2018, para 137.
232 Disinformation and ‘fake news’: Interim Report, DCMS Committee, Fifth Report of Session 2017–19, HC 363, 29 July 2018, para 140.
234 Using Facebook Groups, Tiffany Black, lifewire, 16 December 2018.
235 Banning more dangerous organizations from Facebook in Myanmar, Facebook newsroom, 5 February 2019.
237 Disinformation and ‘fake news’: Interim Report, DCMS Committee, Fifth Report of Session 2017–19, HC 363, 29 July 2018, para 41.
238 Intimidation in Public Life: a review by the Committee on Standards in Public Life, December 2017.
239 The Coalition for Reform in Political Advertising blog, accessed 3 February 2019.
240 Written evidence on Mainstream network.co.uk submitted by 89up, October 2018.
241 Facebook’s ‘Custom Audiences’ was explained in Chapter 4.
242 89up evidence, October 2018.
243 Written evidence on Mainstreamnetwork.co.uk, submitted by 89up, 20 October 2018.
247 How Britain grapples with nationalist dark web, Tom McTague, Politico, 17 December 2018, The man to ‘make the British establishment’s head blow off, Tom McTague, Politico, 21 December 2018.
249 Same as above.
250 Data Protection Act 2018, Schedules 121 to 124.
251 Call for views: Code of Practice for the use of personal information in political campaigns, 6 November 2018.
252 Article 57 1.(d) of the GDPR, Official Journal of the European Union, L119/68.
253 Electoral Commission Freedom of Information response, to a request made on 5 August, in reference to the Spotlight BBC programme, 25 September 2018, Electoral Commission website. The exchange of internal emails highlights the issues.
263 Disinformation and ‘fake news’: Interim Report, DCMS Committee, Fifth Report of Session 2017–19, HC 363, 29 July 2018, para 53.
Published: 18 February 2019