The risks of not reforming our electoral law

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Posted on the 13th February 2019

Martin Moore, Director of the Centre for the Study of Media, Communication and Power, and a Senior Research Fellow in the Policy Institute at King’s College London and Damian Tambini, Associate Professor in the Department of Media and Communications at LSE wrote this article as part of our report Reining in the Political ‘Wild West’: Campaign Rules for the 21st Century.

Well over two years after the EU referendum, and almost a year after the Cambridge Analytica scandal broke, the Electoral Commission (EC) and the Information Commissioner’s Office (ICO) – the statutory bodies for fair elections and data protection – now agree that the relevant regulatory frameworks are broken.

At the same time, both bodies are acutely conscious that there may be another election or referendum in the not-too-distant future. Legislative and regulatory change is, therefore, urgent. Yet the government, and most parliamentarians, appear to share none of this sense of urgency. Even the most basic change, to extend the imprint law to cover online campaign communications, has yet to be implemented at time of writing.

Why do the ICO and the Electoral Commission believe reform is necessary?

Both the ICO and the Electoral Commission have conducted lengthy investigations over the last eighteen months into alleged breaches of electoral and data protection law. The ICO investigation was, the regulator said, the largest and most complex in its history. It involved over 30 organisations, led to 11 warning letters to political parties, and fines up to the maximum possible for the ICO.

By the end, the ICO had become concerned enough about the political use of personal data to call on all parties to reflect on their responsibilities. “We are now”the ICO warned“at a crucial juncture, where trust and confidence in the integrity of our democratic process risks being undermined if an ethical pause is not taken.”

The Electoral Commission found its investigations into alleged breaches equally challenging and complicated. It lacked the powers to require relevant evidence from the technology platforms (most notably Facebook), it struggled to keep track of spending by all campaign participants, and it was unable to trace campaign funding back to its ultimate source. Eventually, when it found evidence to suggest criminal offences had been committed it had to pass responsibility onto the National Crime Agency since it lacked the remit and capacity to trace the origins of the money.

What do the regulators believe needs to be changed?

Since all major political parties have been criticised for processing data unlawfully and breaching consent rules, the ICO is calling for a statutory code of conduct to clarify the existing rules on data use by political parties and tie them in to a shared and agreed regime. In order to make sure such a code – and the law – is adhered to, it has said there should be an independent audit of each campaign’s use of personal data following future elections or referendums. For the Electoral Commission, the government urgently needs to make the sourcing of all campaign material transparent – and enforceable in law. In addition to which, the Commission wants parliament to extend its powers such that it can require information from digital platforms.

Would these changes address all existing problems?

A statutory code could do a lot to clear up confusion about the existing rules and stop the arms race between the parties. If it is carefully implemented and parties and campaigns are provided with training and clear information, it could clean up some of the muddiest aspects of data driven campaigns. Some of this will require further consultation: the ICO has stressed that there are issues around ‘inferred data’ such as lookalike audiences and the consent regime.

A statutory code could do a lot to clear up confusion about the existing rules and stop the arms race between the parties. Click To Tweet

But the wider issue of what is permissible and what is not, in the grey area of targeted manipulation and untruth will not be fixed by this code. Much of what would be considered unfair or wrong is, in fact, perfectly legal. Similarly, more transparency of political advertising would certainly help voters and, if done right, allow for wider scrutiny. Still, implementation will be hard – finding the source of printed campaign literature is far easier than finding the source of a fleeting digital message.

The ICO and the EC are to be admired for the work they have done. And pitied. The problem is that they are each working on a small piece of the complex jigsaw of regulatory reform that is desperately needed, and this is going to be a long hard slog. Not only the ICO and EC, but Ofcom, government services, parliament and a wide range of public bodies are part of the response. As they respond, so digital campaigning moves on at pace.

Meanwhile, none of the main political parties has taken leadership on electoral law reform.

None of the main political parties has taken leadership on electoral campaign law reform Click To Tweet

Clearly, attention on Brexit has deprived many other issues – including reforming our election rules – from parliamentary focus. Plus, given that any reform of the system is likely to constrain parties’ future use of digital campaign tools, we should perhaps not be surprised that few parliamentarians are enthusiastic for change. But the longer that government and parliament take to acknowledge the transformation of our political system as a consequence of the digital revolution, the more this country’s democratic legitimacy will suffer.

Martin Moore and Damian Tambini jointly edited Digital Dominance: the power of Google, Amazon, Facebook and Apple, published by Oxford University Press in 2018.

Read Reining in the Political ‘Wild West’: Campaign Rules for the 21st Century

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