Updating campaign regulation for the digital era

John Pullinger, chair of the Electoral Commission, argues digital campaign regulations need  an ‘overhaul’ to make the electoral process more transparent and accessible to voters, thereby increasing confidence in the system in a manner that doesn’t discourage parties, candidates and campaigners to take in part in elections. He also calls on the UK’s parliaments to show that they do not tolerate the use of online activities that undermine democracy.

Digital channels are transforming our democracy. Action now can harness that transformation to make political campaigns better. Without the right action, our democracy may not be resilient in the face of the challenges posed by the digital era. But there is nothing unique to elections in this. It applies in the same way to how technological change is affecting so many aspects of our lives. And we can respond in the same way.

Voters can already be sceptical about what they see on social media and practise the art of asking. Who is telling me this? Can I be sure it is really from them? Why are they telling me this? Can I believe what they are saying? How can I check it out? Parties, candidates and campaigners can already use digital tools like imprints to show where information is coming from.

Other voices can already accentuate the positive and shame the bad. Social media platforms, news organisations, influencers and fact checkers increasingly see this as central to their own reputation. A platform is not neutral. It has values and shows its true colours by how it acts. By standing on the sidelines, they are getting the message that they will be seen to be complicit in undermining democracy. By standing tall they can see that they can provide a vital public service that will enhance their brand.

So what is left for campaign regulation? In the scramble for votes it is human nature to shout loudly about your own merits, and your opponent’s faults. It can get rough. But there is nothing new here. Unacceptable, even violent, behaviour remains something we should not accept in the conduct of elections. The digital world simply provides a new battleground for an old battle. So the key task for regulation is to be smart to the modern world and apply the same principles that have always applied to elections in a way that reflects the digital era.

I start from the view that we should work with what we have got now first and add more regulation as a last resort. There is a lot more to be done to get the existing system working as well as it could. We should focus on this and not take the easy way out that blames an overcomplex and outdated rule book for failure to act on what we already know needs to be addressed.

Having said all that, we do need an overhaul if our electoral system is to be resilient to the challenges that lie ahead for our democracy. Now is the time to get ahead of those challenges.

Transparency is central to this. And we increasingly struggle to see clearly what is going on. We cannot get the answers we need. Can I see what is behind this information? Who has created it? Why have they targeted me? Who has funded it? Do I have enough knowledge to judge whether I can cast my vote on the basis of what is being said? Can I be confident that one campaign is not being bankrolled to the extent that it can corner the market in what information people get? Can I be confident that there is not some outside influence pulling the strings for their own advantage?

Unless voters feel they can get answers to these questions, the basis for democracy is significantly undermined. Voters cannot judge competing claims. If voters have no trust in campaign information there is no campaign. Then, the way is clear for demagogues, with no interest other than their own desire for power, to try and hoodwink us into giving them our vote. Cynics will say that a dodgy system actually works for political parties. But those parties that believe in democracy actually have the strongest interest in getting this right. In considering change, we will need continuous discussion with political parties, campaigners and candidates.

Unless voters can access the information behind the information in real time it is no use to them. They need it before they cast their vote. In reality, they need it when they first access it since otherwise the moment will have passed. The online source must itself provide the basis for the voter to click and find, to their own satisfaction, information that allows them to verify the claims being made and their source. It will not be good enough to say ‘we have done digital imprints, the problem is solved’. In considering change, we will need continuous dialogue with voters, recognising that voters are highly diverse in the way that they engage with information.

Each of us decides whether someone is trustworthy based on who they are and what they want us to trust them to do. Politicians have never scored too highly in surveys of public trust in the UK. We should worry about this and do what we can to make improvements. However, we should also recognise that our democracy has continued to function and ask why that is. A big part of it has been the role played by intermediary institutions that have influenced us to feel that, despite the faults, we are happy to accept that democracy is still the least worst way of running things. 

The system of regulation must consider how it can work alongside those who are influential with voters and with campaigners. Nurturing a wide variety of voices for democracy will give election campaigns the greatest resilience. Alongside this we should be less accepting of those who routinely sneer at politicians and politics for displays of normal human frailty, like the campaign gaffe.

This is the backdrop to the current constitutional reform agenda at Westminster and in the parliaments of Wales and Scotland. So how might our legislators and regulators proceed?

Legislators know better than most that rules tend to have unintended consequences that were unforeseeable at the time. Parliamentary scrutiny provides an opportunity to think through what it is that we really want. When legislating for things digital, legislators also know that legislation is slower than innovation and will be asking themselves how we can future proof it.

Rules tempt the bad guys to work to the letter of the law, whilst evading the intention of the legislators, and can trap the innocent into inadvertently tripping the wire. This is a particular concern in our politics where volunteers and campaigners in smaller organisations are so important. Legislation can help set the parameters to minimise this risk, but regulators need to carry out their functions in a way that supports those who do not intend to break the rules whilst calling out those who wilfully do break them.

So, what should legislators do? The 2018 Electoral Commission report on digital campaigning recommended legislation on digital imprints, better breakdowns of campaign spending, clarity that spending on election or referendum campaigns by foreign organisations is not allowed, increases in levels of sanction for breaking the rules and better powers to obtain information outside of an investigation. 

The report also recommended better joint working with social media companies, better labelling of adverts about elections and referendums and ensuring social media political advert databases follow UK rules. Finally, it recommended that campaigners provide more detailed and meaningful invoices from their digital suppliers to improve transparency. 

We have been making progress since then, thanks to the work of legislators in Scotland, Wales and at UK level, but technology has moved on once more and we need to get an updated fix on where we are now. This is particularly critical in understanding how to act given that the digital world does not respect national boundaries. Social media organisations are generally global. The location of transactions is hard to pin down and money moves around the world faster than a click. How can we act in the UK, unilaterally and multilaterally, to mitigate the risks?

As our parliaments seek to address these issues over the years ahead, there is an opportunity to look clearly at the issues from the perspectives of voters and of candidates across the UK, in Scotland, Wales and Northern Ireland and more locally.

For voters, the tests for change are whether it makes the electoral process more transparent and gives them more confidence when casting their vote.

For parties, candidates and campaigners, the tests for change are whether it encourages them to take part in elections and whether it provides effective sanctions against those whose actions give everyone involved in politics a bad name

Above all now is the time for the parliaments in the UK to send a message that they want UK political campaigning to embrace the digital era. That they support those who want to get involved in politics by enabling the use of digital tools and technologies. And that they will not tolerate the use of online activities that undermine democracy.

This post is one of a series of posts by speakers at the Unit’s conference on the government’s constitutional reform agenda. John Pullinger appeared as part of the panel, Elections and referendums – updating campaign regulation for a digital era, alongside Unit Deputy Director Dr Alan Renwick, Dr Kate Dommett (whose blog is also available) and Professor Rachel Gibson. The panel is available free of charge on YouTube and on our podcast.

About the author

John Pullinger CB is Chair of the Electoral Commission.