June 8, 2020

In a piece originally published in The Guardian newspaper on 3 June 2020, the ASA asks “Why can political parties act with apparent impunity when making claims in ads and other election materials?”. Despite the global pandemic, it argues that these concerns have not gone away, with the Electoral Commission recently warning that “misleading campaign techniques risk undermining trust in elections”. The ASA says that the “clamour” for political advertising to be regulated “has been loud”. The ASA agrees that claims in political advertising should be regulated. However, it noes that, while it might be straightforward in theory, it is complex in practice.

First, political parties and campaign groups (in the case of referendums) need to agree to be regulated. Otherwise no regulatory body would have the authority to intervene.  As well as legitimacy, the ASA says that an effective regulatory system “must be properly funded, have a carefully defined scope and be independent”.

In the ASA’s view, funding is crucial because of the likely high cost of swiftly regulating political advertising to take effective action before polling day. Unless drastic interventions like mandatory pre-vetting were in place, more complicated or contested claims would need careful investigation and judgment, even if they emerged near the end of an election or referendum campaign. The public would rightly feel short-changed if a significant ruling changed impressions only after the votes had been counted and the winner declared.

The ASA argues that such careful investigation and judgment would need to happen quickly, while respecting well established principles of good regulation, including delivering proportionate, consistent, accountable, targeted and evidence-based decisions. Regulators are not the same as fact-checking services. They are typically compelled to offer a reasonable right of response and are subject to judicial review if they get it wrong. Delivering high quality decisions speedily and diligently is expensive and difficult.

The scope of any political advertising regulatory system would need to be considered carefully. Given the important and necessary protections that free political expression enjoys, it would be wise to consider establishing a narrow remit, regulating only clearly misleading statements of fact, avoiding being drawn into anything resembling a statement of opinion or forecast of the future, however contestable. Whether to narrow the remit solely to paid-for advertising, where media owners and platforms could more easily play a gatekeeper role, would also need to be considered.

Finally, if parties and campaign groups did agree to independent regulation, they must not take it out on the regulator if it is their advertising, rather than their opponent’s, that is banned.

The ASA considers that the danger of becoming a political football and the need for different skills and approaches, for example media/advertising/communications, legal, data, political judgement and constitutional, might make it worthwhile exploring a more collaborative model. It suggests that experts from several appropriate regulators could take on the task, perhaps just for the duration of election or referendum campaigns.

The ASA acknowledges that the subject area is challenging. It says that the ASA, as a non-statutory regulator funded primarily by advertisers, is not the right body to lead political advertising regulation. However, it says that it is “ready to help: sharing our experience of regulating non-political ads and exploring how we might contribute in a more collaborative arrangement”.

Because this issue goes to the heart of our democracy, the ASA argues that “it needs to be the political parties and campaign groups who take the all-important first step: agree to be held to the same standard of truthfulness that society expects from companies”. To read the opinion piece in full on the ASA website, click here.