In recent elections, the legal framework for regulating campaigns has come under considerable strain. The rules were built around a system in which national campaign communications were mainly carried through the broadcast and print media. The last comprehensive reform of election finance law was enacted in 2000. The framework left a number of old problems unresolved, such as the role of big donors.
As the use of the digital media in elections has grown, new issues have emerged, most notably controversies surrounding targeted ads and the use of personal data. While those newer issues need to be addressed, it is also important to recognise the effect of the changes on some longstanding media laws that have helped to define British elections.
Two aspects of broadcast regulation have been at the heart of the legal framework for electoral communications: the ban on political advertising and impartiality obligations.
The ban on political advertising on television and radio has helped to keep the costs of elections down by limiting what campaign money can be spent on. The ban has also shaped the nature of electoral discourse. The UK did not develop the short ‘spot’ ads on TV that were so common in US elections. Instead, UK parties either had to advertise on other media, or seek to influence the mediated coverage of the campaign by appealing to editorial priorities. In 2019, short videos disseminated on the digital media are now a standard campaign tool. That has changed the tone of electoral communications, with campaign messages and short videos aiming to grab attention, be shared and go viral. With these techniques come a range of new ethical questions – such as when it is acceptable to edit a clip of a politician to cast an unfavourable impression, and when such editing amounts to distortion.
The freedom to advertise online can increase the demand for money among parties and campaigners. While the amounts spent on specific adverts revealed in Facebook’s Ad Library seem relatively modest, the data from previous elections show that a significant chunk of campaign spending is on digital advertising. While spending on election campaigning is subject to an overall limit, there can be challenges in applying those rules to digital communications – for example, in tracking the total amounts spent by campaigners online and in determining whether an expenditure is in support of a candidate or party (for which different rules apply). For better or worse, the ban on political advertising on the broadcast media no longer imposes the same constraints on the conduct of the campaign.
The impartiality rules, which are tightened during the campaign period, have also played an important role in elections. While broadcasters retain considerable discretion when covering a political issue, the rules prevent television and radio becoming a mouthpiece for the owner or controller’s electoral agenda. Under the impartiality rules, the broadcast media aims to provide a forum for multiple viewpoints to be debated together before a wide audience. Television and radio are also a place where politicians are likely to face difficult questions from interviewers, or exchange arguments with rival candidates. For that reason, it is unsurprising that many of the videos circulated on social media come from TV interviews, as that is most likely to reveal the politician in an unscripted moment.
The rules constraining political messages on the broadcast media have worked to enhance the relative voice of newspapers as a vehicle for partisan advocacy. Newspapers are not constrained by impartiality rules or the statutory election spending limits. That has empowered the newspapers and meant that the electoral debate is disproportionately shaped by the agenda of newspaper owners and editors. That power may be declining, but it is still significant. However, for all its faults, there is at least a degree of transparency in so far as the biases of the press are normally well known. By contrast, people may not be well placed to assess the credibility, biases or track record of the vast array of sources on the digital media. That problem is underlined by the lack of transparency about the person behind some digital communications.
The election coverage produced by broadcasters is now consumed in a very different media ecosystem than when the rules were first devised. As noted, content from television is often shared on social media. An embarrassing moment in a televised interview is likely to go viral. While this generates significant attention and can make for good entertainment, the audience may be more prone to misinterpret the moment once it is removed from the context of the overall interview. The impartiality rules cannot control the subsequent use by others of material produced on television and radio. The relationship with the digital media may also have an impact on the television coverage of the election. With the pressure to improve presence on the internet, broadcasters may feel the need to engineer a moment that will go viral when interviewing political figures. Politicians may be aware of such risks and avoid television as far as possible, preferring to communicate directly with the public on digital platforms (which offers the politician a level of control).
There are a number of longer-term challenges facing the role of broadcasters in elections. Some parts of the broadcast media are supposed to provide a forum reaching a cross section of society. However, that role may be eroded as more young people stop using television as a primary source of news. The regulatory regime may come under further challenge if, for example, one of the major streaming services decides to produce a news bulletin to compete with TV. Coverage on a streaming service would operate outside of the impartiality rules for broadcasters and the service would have greater freedom to pursue a specific stance on the election. While I don’t know if any major streaming services have such plans, it shows the potential for the broadcasting framework to be further marginalised.
How can the regulatory framework remain relevant in the age of the digital campaign? One obvious answer is to ensure that public service broadcasters remain prominent and reach a wide audience by continuing to develop their presence through the digital media and platforms. A bigger question is whether the digital platforms themselves should be subject to a new set of public service obligations. Some norms are developing, such as publicly accessible archives of political advertisements with details of the amounts spent by the campaigners. Such transparency is, however, just one element in a system for fair elections. Some have called for more radical measures, such as banning political advertising on certain platforms, at least until other legal and ethical problems are resolved. Whether that will provide a quick fix is debatable.
For future elections, the focus must be on what the platforms can do to further the public service goals of providing diverse and reliable information. Whether this happens will depend on decisions made after the current election. The risk is that the existing rules and standards will be further marginalised not as a product of deliberate policy choice, but through inaction in the face of fundamental changes in the conduct of elections.
Jacob Rowbottom is a Professor of Law and Fellow of University College, Oxford