Six years on from receiving a recommendation from the Electoral Commission that existing legal powers should be used to clarify how the rules regarding election imprints apply to internet campaigning, the Government has still failed to act. This is despite the Government acknowledging in its official response to the recommendation the “importance” of getting this right. But it has decided that due to it being a “fast-evolving” area doing nothing for six years is the right response.
Here’s the background: there are well-established rules for the imprint that has to appear on printed literature during election campaigns. There are some disputes over details of how the law operates, in particular over whether Post Office box numbers are legal and how imprint law interacts with the Newspapers, Printers, and Reading Rooms Repeal Act 1869. (This Act is one of my favourite pieces of legislation, partly because of the confusion I caused a few years ago by quoting it to civil servants who had failed to notice that it was still on the statute book.)
But the general principles of election imprints on printed items are clear and widely followed, which is why you frequently see leaflets with wording such as “Printed, published and promoted by Mark Pack on behalf of William Woodings (Liberal Democrats), both at 17 Lever Arch View, London, N1 3AH”.
However, it’s far from clear how these rules should be applied to the online world. The question of emails and websites is moderately straightforward, in that they have space for a full imprint and you can interpret the “printer” required on leaflets to mean the computer firm that hosts the website or provided the email server used to send messages.
It becomes less straightforward for social networking services, where it is often either hard to find somewhere to put suitable information (e.g. is putting an “imprint” on the non-default tab on a Facebook page acceptable?) or where there are problems over the length of messages involved (e.g. you can’t really expect a full imprint in each tweet).
Similar questions apply to other technology. How do you fit an imprint on a text message? Where should an imprint go on a YouTube film: in the film or on the YouTube page or both? Does an imprint buried at the end of a 45 minute DVD suffice or should it also be on the box? And so on.
With a matter of common sense, good will and a bit of ingenious reapplication of laws from other contexts, it is possible to come up with a decent answer in most cases. But there is a risk involved. How would the law get interpreted in a test case? It may seem obvious that if you make it easy to get the imprint information it does not have to be on the face of electronic material – but that logic wouldn’t work if applied to printed material. You couldn’t say “We have a phone number on the leaflet and would have given the imprint to anyone who rang us”.
Therefore in a piece of far-sighted legislation (yes, really) in 2000 Parliament included in the Political Parties, Elections and Referendums Act Section 143(6), which gives the Secretary of State the power, subject to a Parliamentary veto and following consultation with the Electoral Commission, to draw up rules on how the imprint law should apply in all these sorts of circumstances.
Those powers have though never been used. In 2003 the Electoral Commission recommended they should be. Whilst the Government’s response to this in 2004 acknowledged the importance of the issue, it decided that due to the fast-moving nature of the area it would … do nothing in the five years since.
It’s true that there has been no major problem in the interim, but that is due as much to luck as judgement. It should also be remembered just how many new technologies will be in play at the next general election. Twitter is new. Facebook is no longer a niche. Text messaging is even more widespread. The general election is also likely to be far more competitive than the previous three, putting extra temptation in the way of anyone tempted to indulge in silly or immoral campaigning tactics.
And if something comes to court? The judges will have to rule on the law as it is written, not as we might wish it to be – with the risk there’ll be a repeat of the current imbroglio in the United States, where the Florida Election Commission has banned the use of Google Ads because they necessarily do not include the Florida equivalent of an election imprint – as there isn’t enough room. That ruling is being contested, and may yet trigger a change in the law but it shows the risk of doing nothing and hoping all will come out okay.
It doesn’t always, and in this case there is already the legal power to head off problems. As a bonus, coming up with official guidance would reduce the administrative burden on candidates and parties as it would save people having to work out their own answers. But it would require the Government to do more than sit on a recommendation for six years without acting on it.
UPDATE: Eleven years on, something is happening. Perhaps.