Political ads: social media companies scrutinised as UK election looms
Twitter announced in late October it was banning all political advertising, saying the reach of such messages ‘should be earned, not bought’. Google too has opted to disallow political advertisers from targeting voters based on their affiliation and to tighten its ban on ‘demonstrably false claims’.
Facebook meanwhile is facing increasingly fierce criticism for refusing to follow suit, particularly given the UK’s upcoming general election on 12 December. Indeed, Facebook CEO Mark Zuckerberg defended the company’s decision not to remove political advertising – even those ads that contain false information – in an appearance in early December on the show CBS This Morning.
Facebook did however remove an advertisement by the UK Conservative Party that had been edited to show BBC political editor Laura Kuenssberg saying that chaotic debates over Brexit can be avoided if people vote Conservative; in fact, she was merely quoting UK Prime Minister Boris Johnson. Facebook’s decision in this case, however, was made on intellectual property grounds.
The best approach would be to ensure new rules were enshrined within national legislation, and that such legislation was applicable to all companies involved in political advertising
Sarah Pearce
Website Officer of the IBA Technology Law Committee
Zuckerberg argues that banning political ads amounts to censorship and it is not for a private company to censor politicians or news.
Paul Bischoff, privacy advocate at privacy and security research site Comparitech.com, agrees. ‘Social media companies shouldn’t shoulder the responsibility of deciding what political speech is censored and what is not,’ he says. ‘They should, however, be transparent about who pays for ads and let people know how they were targeted. Obviously if ads jeopardise someone’s wellbeing, that’s a different matter.’
Steve Kuncewicz is a partner and social media legal expert at law firm BLM. He says that, of all of the social media platforms, Facebook has been under the most scrutiny, especially as the Cambridge Analytica scandal almost entirely revolved around their implicit cooperation in, or authorisation of, the surreptitious micro-targeting of users.
Facebook agreed to pay a £500,000 fine from the UK Information Commissioner’s Office in late October resulting from suspected failings related to compliance with the UK data protection principles covering lawful processing of data and data security. It did not however admit to liability.
There have been questions around the threat to democracy posed by political advertising, particularly surrounding Donald Trump’s election win in 2016 and the Brexit referendum.
‘It’s incredibly difficult to measure the exact threat or impact, especially as inquiries into foreign interventions have proved inconclusive, but the level of surreptitious micro-targeting is a cause for concern,’ says Kuncewicz.
He highlights that in the current state of social media, foreign parties with a vested interest in the outcome of another country’s democratic vote can have direct access to the newsfeeds of voters in an incredibly targeted way. ‘With enough financial capital, they could undoubtedly have a significant influence on its outcome,’ believes Kuncewicz.
Bischoff concedes that misinformation can be a threat to democracy if it prevents or discourages people from voting. ‘A simple example would be an ad telling people they don’t need to register to vote. That would be fraud and should be handled by authorities. But there’s a fine line between something that isn’t factual and something that’s fraudulent.’
We can improve transparency about who pays for ads and inform users why they were targeted by the ads they see, he says. ‘Advertisers can select who sees ads by where they live, who they’re friends with, and more. People should easily be able to find out why they were served the ads they see and who targeted them.’
The UK’s Electoral Commission regulates the money that the political parties and campaigners receive and spend, alongside setting standards for how elections are run, but does not cover the content or tactics of political campaigns. A spokeswoman for the Electoral Commission says public opinion research shows voters are concerned about the use of personal data, targeted messages spreading false information and about who is funding these messages.
‘Our principal interest is in increasing the transparency of online campaigning by having imprints to help voters understand who is trying to influence them and who’s paying for the content,’ says the spokeswoman.
Concerns raised by digital campaigning, she says, are a global issue, not just a UK one. ‘Social media companies have an important role to play in ensuring greater political campaign transparency. Facebook’s ad library provides information to the public that was not previously available. We continue to recommend that social media companies work with us to improve their political advertising policies and make sure their political advert databases follow UK electoral law.’
If tech companies do not act on concerns, new legislation may eventually force them to – as suggested by the British Government’s Online Harms White Paper, consulted on from April - July 2019.
‘The [proposed] regulation will look to impose a new legal duty of care upon tech companies to protect their users from a wide-ranging definition of “harm”, and set up a new regulator to police it,’ explains Kuncewicz. He adds that for tech companies, ‘keeping in-line with growing public opinion on their “responsibility” towards their users is the industry’s best way of avoiding more draconian regulation being imposed upon them.’
Many businesses are concerned as to the scope of this potential regime, says Kuncewicz. ‘There are certainly a number of gaps to be filled in when any new regulatory proposals are considered in due course – ironically well after the current UK general election.’
Sarah Pearce, Website Officer of the IBA Technology Law Committee and a partner at Paul Hastings, says whether technology companies should be singled out to self-regulate on this issue is something the industry itself should be able to comment on – and be involved in if indeed there is a move to develop any such regulatory regime.
‘If new rules were to be introduced, the best approach would be to ensure they were enshrined within national legislation, and that such legislation was applicable to all companies involved in political advertising,’ believes Pearce. ‘To tackle the current problem, regulation would need to include more granular information and specific rules – the devil is always in the detail and the regulation should ensure that there are no loopholes for companies to exploit.’