Why the ASA don’t regulate political ads


INSIGHT
Published
May 2nd '24
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2024 is a big year for politics and the democratic process. Today, local elections of one kind or another – mayoral, council, police and crime commissioners – take place across England and Wales. A UK general election must be held by the end of January 2025. And globally, elections will happen this year in over 80 countries, which means more than half of the world’s population will have the chance to cast a vote. 

 

All of them, and more, will see or hear political ads designed to persuade the electorate to vote for a political party or candidate. In the UK, political ads can inform and sometimes even entertain, as well as provoke and divide opinion. But unlike other ads, they don’t have to follow advertising rules that prohibit them from being likely to mislead, harm or offend.

 

As we approach the general election in the coming months, the Advertising Standards Authority (ASA) reminding people why they don’t regulate the claims they see in political ads. And they’re signposting the resources available for anyone who has concerns about political campaigns they see or hear in the run-up to the election.

 

  • The political ad landscape 

Influencing voters in elections is all part of the democratic process, but truth matters. The Electoral Commission warned in 2019 that misleading campaign techniques risk undermining trust in elections. And in 2020, the Lords Democracy and Digital Technologies Committee’s Resurrection of Trust Report called for political parties to work with regulators, including the ASA, to develop a code of practice for political advertising, along with appropriate sanctions, that restricts fundamentally inaccurate advertising during a parliamentary or mayoral election, or referendum.

 

Political parties and campaigners are increasingly using digital ads to reach and influence potential voters. And that includes partnering with influencers to help engage different age-groups and demographics. There are concerns about how technology, particularly in the hands of a hostile foreign states, might be used to interfere with election outcomes, particularly by harnessing AI and producing ‘deep fakes’ of politicians appearing to say or do things that might be harmful to their popularity with voters.

 

  • Help and advice for voters 

The Electoral Commission has put together useful resources for voters who might have concerns about who has funded an ad, the accuracy of the statistics behind claims or how their data is being used for targeting. It highlights the role that other bodies, including the Office for Statistics Regulation and the Information Commissioner’s Office, play in regulating various aspects of political campaigns.

 

And to help people understand the ads they may encounter ahead of elections, Media Smart, in partnership with the Advertising Association, has created a new resource to help improve political literacy. It provides a guide to the election advertising rules, signposts fact checking services and highlights the threat of misinformation and how to combat it. It is especially aimed at young people who may be preparing to vote for the first time. Research shows they are significantly less likely to trust political advertising than commercial advertising.

  • Few rules for them, lots for everyone else… 

As it currently stands, political advertisements are banned from being broadcast on TV or radio under the Communications Act 2003. Instead, parties are given airtime via party political broadcasts, which aren’t classed as advertising. But claims in ads in non-broadcast media (online, posters, newspapers etc.) whose principal function is to influence voters in local, regional, national or international elections or referendums are exempt from the CAP Code that the ASA administers.

 

So, why is it that political parties can act with apparent impunity when making non-statistical claims in ads and other election materials?  Particularly when we at the ASA understand, and have sympathy with, those who call for political ads to be subject to the same standards that other UK advertisers must abide by?

There are several good reasons.

 

  • Unwilling parties 

Regulating (mostly-commercial) advertising is very different from regulating political advertising, which forms part of the democratic process. And leaving aside the point of principle around whether a non-statutory regulator like the ASA should interfere in that process, what might look simple in theory is complex in practice.

 

Before addressing the difficult question of how, an essential first step must be that the political parties agree to their advertising claims being regulated. Otherwise, what authority would any advertising regulator have to intervene?

 

One of the strengths of the ASA system is the support and cooperation received from the overwhelming majority of UK companies, who typically abide by both rules and decisions. And one of the reasons why the ASA system withdrew entirely from regulating political ads in the late 1990s was a concern about restraining freedom of speech around democratic elections without a clear mandate to do so from political parties. Political parties continue not to be willing to be regulated, despite calls.

 

  • The regulatory challenge 

As well as legitimacy, an effective advertising regulatory system must be properly funded, have a carefully defined scope and be able to withstand political pressure.

 

Funding is crucial because of the likely high cost of swiftly regulating political advertising to take effective action before polling day. Unless costly interventions like mandatory pre-vetting were in place, more complicated or contested claims would need careful investigation and judgement, even if they emerged towards the end of an election 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.

 

That 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 must offer a reasonable right of response and are subject to judicial review if they get it wrong.

 

So delivering high quality decisions speedily and diligently would be expensive, but it would also be difficult.

 

The political advertising regulatory system would need to consider carefully its scope. Given the important and necessary protections free political expression enjoys, it might 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. (Of course, one person’s statement of fact is another’s statement of opinion, so even distinguishing between those can be difficult.) And it would be faced with the unenviable decision of whether also to narrow the remit solely to paid-for advertising, where media owners and platforms could more easily play a gatekeeper role. In short, whether to sacrifice comprehensiveness at the altar of expediency.

 

Finally, if the parties did agree to independent regulation, they couldn’t take it out on the regulator when it was their advertising, not their opponent’s, that was banned. No regulator wants to become a political football.

 

  • Not the right body to lead, but ready to help 

There’s no doubt the above requirements are challenging, if not insurmountable. The ASA, as a non-statutory regulator funded primarily by advertisers, is not the right body to lead political advertising regulation, but are ready to help if the political will is there. The ASA could share their experience of regulating non-political ads. They could explore how the ASA might contribute in a more collaborative arrangement, drawing on the skills and approaches of other regulators, sharing the reputational risk.

 

But precisely because this issue goes to the heart of our democracy, it needs to be the political parties who take the all-important first step: agree to be held to broadly the same standards that society expects from companies.

 

  • Have your say 

So where does that leave the public today? The best course of action for anyone with concerns about political ads that existing regulators cannot help with is to contact the party responsible and exercise your democratic right to tell them what you think. In the age of social media, that is easier than ever. Use your platform and share your opinion with them and your followers. Please do it constructively and respectfully.

 

Read more on the recent announcement that broadcaster streaming services such as ITVX might, for the first time, allow political ads on their platforms.

 

Source: ASA

 

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