The saying “lies, damned lies, and statistics” is a well-known phrase, popularized by Mark Twain, that describes the potential for statistics to be used to distort the truth or support weak arguments and is often attributed to Benjamin Disraeli.

In politics however the situation is simply schizophrenic.

The misleading of parliament is the knowing presentation of false information to parliament, a very serious charge in Westminster system parliamentary assemblies and government ministers who are found to have misled parliament will generally lose their ministerial portfolio and be fored to personally apologise to Parliament. In addition, for witnesses giving testimony to a parliamentary committee, giving misleading evidence can be considered a contempt of Parliament; however, it is unclear what penalties there would be for a mere MP and indeed the last time a Parliament levied a fine for misleading Parliament was 1666, the year of the Great Fire of London!

Contrast this with electioneering where almost anything goes except that you cannot

In 1994, Parliament’s Treasury & Civil Service Committee noted that “the knowledge that ministers and civil servants may evade questions and put the best gloss on the facts but will not lie or knowingly mislead the House of Commons is one of the most powerful tools MPs have in holding the executive to account“.

“It’s easier to get thrown out of the House of Commons for calling someone a liar than for lying itself.“

The Profumo affair is one such example.
John Profumo, Secretary of State for War (equivalent today of the Secretary of State for Defence) was having an affair with Christine Keeler, the reputed mistress of an alleged Soviet spy. When he was questioned about it, he lied to parliament and when found out, it forced the resignation of Profumo and damaged the reputation of Prime Minister Harold Macmillan’s government irreparably.
Much more recently, Boris Johnson, UK Prime Minister misled parliament about covid contracts. On March 5, 2021, a court order subsequently showed that Prime Minister Boris Johnson had “misled parliament over coronavirus contracts ” and subsequently, the leaders of six opposition parties petitioned parliament that he had been guilty of “a consistent failure to be honest”. Subsequently, he also misled the Parliament about parties in number 10 and this was his undoing politically.
In 2021, a petition to make knowingly lying to parliament a criminal offence obtained more than 100,000 signatures, but UK Conservative government, backed by the Labour Government, announced that it does not plan to do so.

In Ball v Johnson, a private prosecution was sought of Boris Johnson for alleged misconduct in public office (as MP and Mayor of London – two public offices), something that is a serious criminal offence with a maximum punishment of life imprisonment. The alleged misconduct included lying in statements of fact on a number of occasions about the UK’s monetary contributions to the EU budget. The judge agreed with Johnson’s lawyer that the prosecution was “vexatious” and “politically motivated”. The High Court dismissed the case and quashed the summons.

MPs lying in a serious way, when called out in the House of Parliament, are sometimes voted out by their constituents at the next election or (as MP) held to account by the Committee for Standards in Public Life, but this is very rare.

Advertising

All adverts and advertising must be “legal, decent, honest and truthful”… but that’s also not quite so simple, as there is a subjective test.

Legal

Decent

Honest

Truthful

The Electoral Commission accepts that political advertising can inform voting intentions and is a fundamental part of any democratic system, but then fails to regulate it, ceding the control of advertising to Ofcom and to the ASA (Advertising Standards) , despite keeping control of the regulation of campaign leaflets for national elections, although it appears that regulation of campaign leaflets for national elections lies with the local police force.

In the UK, general advertising, sales promotions and direct marketing across all media, is regulated by the Advertising Standards Authority (ASA). As an independent regulator, the ASA enforces the Advertising Codes. There are separate codes for non-broadcast advertisements (known as the CAP Code) and broadcast advertisements (known as the BCAP Code). The two codes have broadly consistent rules that prohibit discriminatory treatment and/or harm and offence. Advertisements made by companies and third sector bodies (such as voluntary and community organisations)must adhere to ASA rules. However, non-broadcast political advertising which principally aims to influence voters in local, regional, national or international elections or referendums is exempt under rule 7 of the CAP Code and is not regulated by the ASA. The CAP Code doesn’t specify how voters must be “influenced” nor does it state that an election or referendum must have been called, or that it must be referred to explicitly in the ad. The ASA bases its assessment on “the nature and function” of the claims within the advert itself. It follows from this that if a non-broadcast advertisement for a product or service makes a topical reference to an election or referendum, but its principal function is to sell the product rather than to influence the election result, the CAP Code may still apply, and the ASA will still regulate it. It is important to note that the same test applies whether the advertisement in question has been published by an individual, a commercial business, a charity, a political party, an interest group or any other type of organisation.

The Communications Act 2003 bans all political advertising from being broadcast on television or radio and this legislation is strictly enforced by the Office of Communications (Ofcom); however, parties are also given airtime via party political broadcasts which are not classified as advertising.

Complaints of political bias in television or radio advertising can also be made to Ofcom; however, parties are also given airtime via party political broadcasts which are not classified as advertising.

Non-broadcast political advertising (which includes in leaflets and newspapers or on social media sites) is largely exempt from regulation.

Why are non-broadcast political ads treated differently by the ASA?
This is a relatively new development. Following the 1997 General Election, the Committee of Advertising Practice decided to exclude political advertising from the ASA’s remit. There were concerns that the impartiality of the ASA could be damaged by rulings for or against political parties, and the likelihood that complaints subject to ASA investigation would be ruled upon after an election had taken place. The Human Rights Act 1998 also raised concerns about the legality of the ASA restraining the freedom of political speech around democratic elections and referendums.

A 1998 report, the “Neill Committee on Standards in Public Life” considered political advertising as part of a wider investigation into party funding and recommended that political parties seek to adopt a new code of practice. The Electoral Commission, an independent body which regulates party and election funding, consulted on the issue in 2003. In its 2004 report, Political advertising – report and recommendations, the Commission prioritised the need to promote and protect the interests of the electorate, but argued that any regulation of political advertising should be voluntary – it should remain outside the remit of the ASA.

Are political adverts regulated by electoral law?
Electoral law doesn’t require claims in political campaigns to be truthful or factually accurate, but it is a crime to make or publish a false statement of fact about the personal character or conduct of a candidate.

Campaigners are set limits on the amount of money they can spend during an election or referendum. The same limits apply whether campaigners use long-standing advertising techniques, such as printed mailshots or billboard, or newer ones, such as emails and online adverts.

What about digital advertising and social media?
Unsurprisingly, Electoral Commission statistics show that the proportion of money spent on digital advertising has steadily increased, from 0.3% in 2011 to 42.8% in 2017. But this is not the full picture. Campaigners are also contacting voters for free on social media, potentially reaching wide audiences. The Electoral Commission has considered the risks and challenges that digital campaigns bring to the UK’s election and referendum rules. In its June 2018 report, Digital campaigning- increasing transparency for voters, the Commission made a series of recommendations, including: insisting on imprints on digital campaign material, increasing maximum fines, and giving the Commission greater powers to compel information from third parties.

Some digital and social media companies have voluntarily introduced measures to improve transparency for voters. For instance, Facebook’s Ad Library offers a searchable collection of all ads currently running across its products, whilst Twitter recently announced that it would be banning political advertising globally.

e regulation of political advertising and campaign advertising in the UK is a complex landscape, involving a combination of statutory law, regulatory bodies, and self-regulatory codes. This essay will delve into the intricacies of this system, with a particular focus on the roles of the Advertising Standards Authority (ASA), the Committee of Advertising Practice (CAP), and the Broadcast Committee of Advertising Practice (BCAP), and the challenges posed by misleading or false statements in campaign materials.

1. Defining Political Advertising

Before examining the regulatory framework, it is crucial to define what constitutes “political advertising.” The Communications Act 2003 provides a key definition, particularly concerning broadcast media. According to the Act, “political advertising” includes any advertisement:

• Inserted by or on behalf of a body whose objects are wholly or mainly of a political nature.
• Directed towards a political end.
• Connected with an industrial dispute.

The Act further clarifies that “political ends” include:

• Influencing the outcome of elections or referendums.
• Bringing about changes in the law or influencing the legislative process.
• Influencing the policies or decisions of governmental bodies or those with public functions.
• Influencing public opinion on a matter of public controversy.
• Promoting the interests of a political party or group.

This definition is crucial for understanding the boundaries of what is considered political advertising and, consequently, which regulations apply.

2. The Regulatory Bodies

Several bodies play a role in regulating advertising in the UK, each with its specific remit:

2.1 The Advertising Standards Authority (ASA)

The ASA is the UK’s independent advertising regulator. It is responsible for ensuring that advertisements across all media are legal, decent, honest, and truthful. The ASA operates through the enforcement of the Advertising Codes, which are written and maintained by CAP and BCAP.

The ASA’s role is primarily one of self-regulation. It is funded by the advertising industry itself, ensuring its independence from both the government and advertisers. The ASA investigates complaints about advertisements and can order the withdrawal or amendment of those that breach the Codes. While the ASA’s sanctions are not legally binding in the same way as court orders, compliance is generally high due to the potential for reputational damage and the cooperation of media outlets.

2.2 The Committee of Advertising Practice (CAP)

CAP is the body responsible for writing and maintaining the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the CAP Code). This code covers advertisements in various non-broadcast media, including:

• Print advertising
• Online advertising
• Sales promotions
• Direct marketing

CAP works closely with the ASA to ensure that the CAP Code is effective and up-to-date. It also provides guidance and advice to advertisers on how to comply with the Code.

2.3 The Broadcast Committee of Advertising Practice (BCAP)

BCAP is the body that writes and maintains the UK Code of Broadcast Advertising (the BCAP Code). This code governs advertisements on television and radio. Like CAP, BCAP works in partnership with the ASA to ensure the effective regulation of broadcast advertising.

2.4 Ofcom

The Office of Communications (Ofcom) is the UK’s communications regulator. While the ASA regulates the content of most advertisements, Ofcom has a specific role in regulating broadcast advertising, particularly concerning political advertising.

The Communications Act 2003 prohibits political advertising in broadcast media. Ofcom is responsible for enforcing this prohibition. Political parties are instead allocated broadcast time through party political broadcasts, which are not classified as advertising. Ofcom also regulates the overall standards of broadcasting, including issues of impartiality and fairness.

3. The Advertising Codes: CAP and BCAP

The CAP and BCAP Codes are the cornerstones of advertising regulation in the UK. They set out the standards that advertisements must meet to be considered acceptable. Both codes share fundamental principles, requiring that advertisements be:

• Legal
• Decent
• Honest
• Truthful

In addition to these core principles, the codes include specific rules on various aspects of advertising, such as:

• Misleading advertising
• Substantiation of claims
• Comparative advertising
• Advertising to children
• Offence and social responsibility

The Codes are regularly updated to reflect changes in legislation, technology, and societal standards. They provide detailed guidance to advertisers on how to ensure their campaigns comply with the rules.

4. Political Advertising and the ASA/CAP Codes

A critical aspect of UK advertising regulation is the distinction between general advertising and political advertising. While the ASA and the CAP Code cover a wide range of advertisements, they explicitly exclude certain types of political advertising.

4.1 Exclusion of Political Advertising from the CAP Code

The CAP Code states that it does not apply to “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.” This means that non-broadcast advertisements whose primary purpose is to influence the outcome of an election or referendum are not regulated by the ASA.

The rationale behind this exclusion is complex. It stems from concerns about the ASA’s impartiality in adjudicating on matters of political debate, the potential for rulings to be made after an election has taken place, and the implications for freedom of political speech under the Human Rights Act 1998.

4.2 Implications of the Exclusion

The exclusion of political advertising from the CAP Code has significant implications:

• Lack of Oversight: A substantial portion of political advertising, particularly in non-broadcast media such as leaflets, newspapers, and online platforms, falls outside the ASA’s regulatory remit.
• Limited Recourse for Complaints: Individuals or groups who believe that a political advertisement is misleading or untruthful have limited avenues for redress through the advertising regulatory system.
• Focus on Broadcast Media: The regulation of political advertising is primarily concentrated in the broadcast sector, where Ofcom enforces the prohibition on political advertising and oversees party political broadcasts.

5. Broadcast Advertising and Ofcom

As mentioned earlier, Ofcom plays a central role in regulating broadcast political advertising. The Communications Act 2003 prohibits political advertising on television and radio, and Ofcom is responsible for enforcing this prohibition.

5.1 Party Political Broadcasts

Instead of traditional advertising, political parties are allocated broadcast time for party political broadcasts (PPBs). These broadcasts are subject to specific rules and guidelines set by Ofcom, ensuring a degree of impartiality and fairness in the allocation of airtime.

5.2 Ofcom’s Broader Role

Ofcom’s responsibilities extend beyond the prohibition of political advertising and the regulation of PPBs. The regulator also oversees the broader standards of broadcasting, including:

• Impartiality: Ofcom’s Broadcasting Code requires broadcasters to maintain due impartiality in their coverage of political matters.
• Fairness: Broadcasters must also ensure fairness in their treatment of individuals and organizations involved in political issues.
• Accuracy: News coverage must be accurate.

These rules aim to ensure that broadcasters provide a balanced and accurate portrayal of political issues, contributing to an informed electorate.

6. The Challenge of Lies in Campaign Material

One of the most contentious issues in the regulation of political advertising and campaign advertising is the prevalence of misleading or false statements. While the advertising codes prohibit untruthful advertising in the commercial sphere, the regulation of truthfulness in political campaigning is far more complex.

6.1 Lack of a Truthfulness Requirement

In contrast to commercial advertising, there is no general legal requirement for political statements to be truthful. While it is a crime to make false statements about the personal character or conduct of a candidate, there is no equivalent prohibition on making false statements about a party’s policies or record.

This lack of a clear legal framework has led to concerns about the potential for politicians and parties to make misleading or deceptive claims during campaigns, without facing significant consequences.

6.2 The Role of the ASA in Addressing Misleading Claims

Although the ASA does not generally regulate political advertising, it does take action in certain circumstances where political claims intersect with commercial advertising. Examples include ads by commercial bodies or campaign groups that make factual claims and could mislead consumers. However, these cases are often on the margins.

6.3 The Impact of Misleading Campaign Material

The dissemination of misleading or false information in campaign material can have several detrimental effects:

• Erosion of Trust: When voters encounter false or misleading claims, their trust in the political process and in politicians can be eroded.
• Manipulation of Public Opinion: False information can be used to manipulate public opinion, potentially distorting the outcome of elections or referendums.
• Hindrance of Informed Decision-Making: Voters cannot make informed decisions if they are presented with inaccurate or misleading information about the policies and platforms of different parties.

7. Confusing Campaign Literature

In addition to outright falsehoods, campaign literature can also be misleading through the use of confusing or ambiguous language, selective presentation of information, or the omission of crucial context.

7.1 Tactics Used in Confusing Literature

Some of the tactics employed in creating confusing campaign literature include:

• Jargon and Technical Language: Using complex jargon or technical language that is difficult for the average voter to understand.
• Selective Quotation: Quoting opponents or reports out of context to distort their meaning.
• Omission of Key Facts: Presenting only partial information or omitting crucial facts that would provide a more balanced picture.
• Emotional Appeals: Relying heavily on emotional appeals or scare tactics, rather than presenting factual information.

7.2 The Impact of Confusing Literature

Confusing campaign literature can be just as harmful as outright lies:

• Voter Disengagement: Voters may become disengaged from the political process if they find campaign materials difficult to understand or feel that they are being deliberately misled.
• Misinterpretation of Policies: Confusing language can lead to misinterpretations of party policies or the potential consequences of certain political decisions.
• Undermining Democratic Process: The deliberate creation of confusion in campaign literature can undermine the democratic process by making it more difficult for voters to make informed choices.

8. Reform Proposals and Debates

The challenges posed by misleading campaign material and the limitations of the current regulatory framework have led to calls for reform and various proposals for change.

8.1 Calls for Greater Regulation

Many commentators, academics, and civil society groups have advocated for greater regulation of political advertising and campaign material. Proposals include:

• Extending the ASA’s Remit: Expanding the ASA’s remit to cover a wider range of political advertising, including online and social media content.
• Legal Requirement for Truthfulness: Introducing a legal requirement for political statements to be truthful, similar to the rules that apply to commercial advertising.
• Independent Fact-Checking: Establishing an independent body to fact-check campaign materials and publicly correct false or misleading statements.
• Increased Transparency: Requiring greater transparency in the funding and sources of campaign advertising.

8.2 Arguments Against Increased Regulation

However, there are also arguments against increased regulation of political advertising:

• Freedom of Speech: Concerns about infringing on freedom of political expression, which is a fundamental principle of democracy.
• Practical Difficulties: The practical difficulties of defining and enforcing a truthfulness requirement in the context of political debate, where opinions and predictions are often involved.
• Potential for Abuse: Concerns that increased regulation could be used to stifle legitimate political debate or give an unfair advantage to incumbent parties.

8.3 Digital Campaigning and Social Media

The rise of digital campaigning and social media has further complicated the regulation of political advertising. Traditional regulatory frameworks, such as the CAP and BCAP Codes, were not designed to address the unique challenges posed by online platforms.

• Microtargeting: The ability to microtarget voters with personalized political messages raises concerns about transparency and the potential for manipulation.
• Disinformation and Fake News: The spread of disinformation and fake news on social media poses a significant threat to the integrity of political discourse.
• Regulatory Gaps: Existing regulations struggle to keep pace with the rapid evolution of online campaigning techniques.

9. International Comparisons

Examining how other countries regulate political advertising can provide valuable insights for potential reforms in the UK.

9.1 Approaches in Other Countries

Different countries have adopted various approaches to regulating political advertising, including:

• Strict Prohibitions: Some countries impose strict prohibitions on political advertising in broadcast media.
• Equal Time Rules: Others require broadcasters to provide equal time to all political parties.
• Fact-Checking Mechanisms: Some have established independent bodies to fact-check political advertising and campaign material.
• Mandatory Disclaimers: Many require advertisements to include mandatory disclaimers indicating who funded the ad.
• Content Restrictions: Some countries have rules limiting the content of political advertisements, for instance by preventing the use of inflammatory language or hate speech.

9.2 Lessons for the UK

Comparing these different approaches can offer lessons for the UK as it considers potential reforms. For example, the establishment of an independent fact-checking body or the introduction of stricter transparency requirements could be considered.

10. Conclusion

The regulation of political advertising and campaign advertising in the UK is a complex and evolving area. While the ASA, CAP, and BCAP play a vital role in ensuring that general advertising is legal, decent, honest, and truthful, the regulation of political advertising, particularly in non-broadcast media, presents significant challenges.

The lack of a general requirement for truthfulness in political statements, the limitations of the current regulatory framework, and the rise of digital campaigning have all contributed to concerns about the potential for misleading or deceptive information to be disseminated during election campaigns.

Addressing these challenges will require careful consideration of the balance between freedom of speech, the need to protect the integrity of the democratic process, and the practical difficulties of regulating political discourse. While there are no easy answers, it is clear that reform is needed to ensure that voters have access to accurate and reliable information, enabling them to make informed choices.

The debate about how best to regulate political advertising and campaign advertising is likely to continue for some time, as policymakers, regulators, and civil society grapple with the complex issues at stake.

11. Recent Developments and Future Directions

The regulatory landscape continues to evolve.

• Online Regulation: Efforts are ongoing to address the challenges posed by online political advertising, with discussions about greater platform accountability and increased transparency.
• Reform Proposals: Various proposals for reform are being considered, including potential changes to the ASA’s remit and the introduction of new regulations to combat misinformation.
• Public Debate: Public debate about the regulation of political advertising is likely to intensify, particularly in the lead-up to future elections and referendums.

The challenge is to find a balance between protecting free speech and preventing the spread of harmful or misleading information that could undermine the democratic process.

he issue of misleading campaign material and outright lies about other political parties’ policies and intentions is a significant and growing concern in UK elections. Here’s a deeper dive into the complexities of this problem:

Forms of Misleading Campaign Material:

• Imitation Publications:
  • A prevalent tactic involves producing leaflets designed to mimic local newspapers. These often adopt similar layouts, mastheads, and even titles, creating the impression of impartial news reporting.
  • This can deceive voters into believing they are receiving objective information when, in fact, they are being presented with partisan propaganda.
• Misleading Visuals and Branding:
  • Campaign materials may employ colors, logos, or design elements that closely resemble those of opposing parties, causing confusion about the source of the information.
  • This tactic aims to exploit voters’ existing associations and potentially sway their opinions through deception.
• Manipulated Digital Content:
  • The rise of digital technology has introduced new forms of deception, including:
    • Deepfakes: AI-generated videos or audio recordings that convincingly mimic real individuals, potentially spreading false statements or portraying candidates in a negative light.
    • Doctored Images: The manipulation of images to misrepresent events or portray candidates in a false light.
    • Misleading Online Adverts: The use of targeted online advertisements that spread misinformation or distort the policies of opposing parties.
• Misrepresentation of Sources:
  • Campaign material may present information in a way that implies it comes from a neutral or authoritative source, when it in fact is produced by the political party.
• Misleading use of statistics:
  • Political parties may use statistical information in a way that is misleading, by taking data out of context, or only showing data that supports their argument.

Lies About Other Parties’ Policies and Intentions:

• Distortion of Policy Proposals:
  • Parties may misrepresent the details of their opponents’ policies, exaggerating potential negative consequences or ignoring mitigating factors.
• Fabrication of Policy Positions:
  • In some cases, parties may create entirely false claims about their opponents’ policy stances, attributing positions that they do not hold.
• Misrepresentation of Intentions:
  • Campaign materials may falsely portray the intentions of opposing parties, suggesting that they have hidden agendas or ulterior motives.
• Exploitation of Public Fears:
  • Parties may exploit public anxieties by making false claims about the potential consequences of their opponents’ policies, aiming to incite fear and distrust.

Consequences and Concerns:

• Erosion of Public Trust:
  • The prevalence of misleading campaign material and false claims undermines public trust in the electoral process and political institutions.
• Voter Disenfranchisement:
  • When voters are presented with false or misleading information, they may make uninformed decisions, potentially leading to voter disenfranchisement.
• Polarization of Public Discourse:
  • The spread of misinformation and false claims can contribute to the polarization of public discourse, making it more difficult to have constructive political debate.
• Damage to Democratic Processes:
  • When the public cannot trust the information that they are recieving, the entire democratic process is put in danger.

Efforts to Address the Issue:

• Fact-Checking Organizations:
  • Organizations like Full Fact play a crucial role in scrutinizing political claims and debunking misinformation.
• Media Scrutiny:
  • The media has a responsibility to hold politicians accountable for the accuracy of their statements and to provide voters with reliable information.
• Electoral Commission Guidance:
  • The Electoral Commission provides guidance on transparency and encourages responsible campaigning, but it lacks the power to regulate the content of campaign material.
• Calls for Legislative Reform:
  • There are growing calls for stronger regulations to address misleading campaign material and false claims, particularly in the online sphere.

It’s important to understand that the current legal framework has clear limitations in regards to the regulation of the content of political campaign materials.

When discussing penalties related to misleading campaign material in the UK, it’s crucial to distinguish between different types of offenses. Here’s a breakdown:

1. False Statements About a Candidate’s Personal Character or Conduct:

• This is a specific legal offense.
• If a person makes or publishes a false statement of fact about the personal character or conduct of a candidate, with the intention of affecting the election, they can face legal consequences.
• These cases are handled by the police and can lead to prosecution.
• Penalties can include fines and other legal sanctions.

2. Electoral Offenses (General):

• The Representation of the People Act 1983 (RPA 1983) outlines various electoral offenses.
• These include:
  • Bribery: Offering money or other inducements to influence voting.
  • Personation: Voting as someone else.
  • Undue Influence: Using threats or coercion to influence voting.
  • False Registration Information: Providing false details on voter registration forms.
• Penalties for these offenses can vary, including:
  • Fines.
  • Imprisonment.
  • Disqualification from holding public office.

3. Imprints:

• Campaign materials (both printed and increasingly digital) are required to have imprints, which identify who produced and paid for them.
• Failure to include a proper imprint is an offense.
• The Electoral Commission enforces these rules.
• Penalties can include fines.

4. Misleading Policy Claims:

• Critically, there are no specific legal penalties for making false or misleading claims about the policies of other political parties.
• This is a significant gap in the current regulatory framework.
• The emphasis is on:
  • Fact-checking by independent organizations.
  • Media scrutiny.
  • Voter awareness.

Key Points:

• The legal framework focuses more on the process of elections (e.g., preventing fraud, ensuring transparency) than on the content of political claims.
• The rise of online campaigning has created new challenges, as digital platforms can be used to spread misinformation quickly and widely.
• There are ongoing debates about whether to strengthen regulations on political advertising, particularly online, and whether to introduce penalties for misleading policy claims.

It’s important to understand that the legal landscape is complex, and the application of these rules can vary.