What are the key legal issues facing political parties on the campaign trail?

The law seeks to strike a balance between allowing freedom for candidates to get their views across at election time, whilst restricting anything likely to subvert the democratic process.

One of the most important elements is the restriction on spending, regulated by the Election Commission. The Political Parties, Elections and Referendums Act 2000 (PPERA) and Representation of the People Act 1983 (RPA) determine what can be spent by political parties (nationally), by the candidate, the election agent or the agent’s appointees (at constituency level), and by third parties (including UK residents, charities, companies and trade unions) in connection with promoting or procuring electoral success for a party or candidate in the “regulated period” prior to an election. This catches expenditure on advertising. But in social media there may be little correlation between the cost of an ad and its impact; and editorial matter in newspapers is not caught.

Election legislation has specific provisions to prevent confusion, for example by disguising one party’s advertising to look like another’s. It is also an offence to pay an elector for displaying election advertisements, unless that is part of their normal business.

As far as political campaigning addressed to individuals is concerned, political parties and candidates have the right to send a freepost mailing to all those on the full electoral register, regardless of the recipients’ wishes. Beyond that, the Information Commissioner’s Office (‘ICO’) treats such campaigning in the same way as any other form of direct marketing, regulated by the Data Protection Act 1998 and Privacy and Electronic Communication (EC Directive) Regulations 2003. National parties, constituency associations and local associations may all (if different legal entities) need to notify the ICO that they are processing personal data. Opt out requests (including by registration with the Telephone Preference Service) must be respected, and campaigning by email or text to individual subscribers should only be to those who have consented to that form of contact by that organisation.

Why are political adverts not subject to oversight from the ASA? Is there any oversight of campaign adverts?

During the 1997 General Election campaign the Advertising Standards Authority was troubled by having to rule on the Conservatives’ controversial ‘demon eyes’ campaign featuring Tony Blair. It was thought that an advertising industry self-regulatory body should not be called upon to intervene in the democratic process by regulating free speech at election time. So the CAP Code for non-broadcast advertising no longer covers “Claims in marketing communications, whenever published or distributed, whose principal function is to influence voters in a local, regional, national or international election or referendum”. The Electoral Commission has also declined to get involved.

In contrast the BCAP Code for broadcast advertising, reflecting the requirements of the Communications Act 2003 and continued persuasive power of TV in the nation’s living rooms, prohibits advertising of a political nature or directed towards a political end on TV and radio altogether, save for party political broadcasts (see below). The ASA refers complaints about broadcast political ads to Ofcom.

Videos targeting voters on social media sites like Youtube and Facebook are not “broadcast” and are thus not regulated by the ASA or Ofcom . Voters must make up their own minds about what is placed before them, and if it irritates rather than inspires, they will vote accordingly.

Note that central and local government advertising, which by convention must be objective, informative and non-party political, is still caught by both Codes.

With mud-slinging a constant feature of political campaigns, is there risk of defamation actions?

Individuals and corporate entities (but not political parties or government) may sue in defamation if a statement is likely to cause serious harm to their reputation (or serious financial loss, in the case of bodies trading for profit). There is no special privilege afforded to election candidates, but the courts are keen to protect free speech at election time. Thus Mr Waterson, former Conservative MP for Eastbourne, failed in his claim against the successful Liberal Democrat candidate and his agent for distributing election material describing the claimant as an ‘expenses scandal MP’ for claiming over £70,000 for mortgage payments on a family home around 60 miles from his constituency. The Court of Appeal held that the allegation of a scandal was honest opinion, noting that ‘the limits of acceptable criticism are wider in relation to politicians acting in their public capacity than in relation to private individuals’ .

Following dissolution of Parliament hon 30 March the law provides additional protection to politicians, to prevent subversion of the democratic process. It is a criminal offence for anyone, for the purpose of affecting the return of any candidate at an election, to make or publish a false statement of fact (as opposed to opinion) about a candidate’s personal (as opposed to political) character or conduct, unless the person can show they had reasonable grounds for believing and did believe the statement to be true (RPA). Identifying what is personal as opposed to political is not always easy, and the consequence of a finding of guilt can be dramatic - Phil Woolas MP lost his seat after the 2010 election after alleging falsely that his opponent had for political advantage courted the votes of Muslim extremists advocating violence .

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Simon Steeden

Charity Partner and Head of Politics, Elections and Campaigning

+44(0)20 7551 7782

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Posted on 31/03/2015 in Legal Updates

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