Who: The Advertising Standards Authority (ASA) and the UK’s political parties
Where: United Kingdom
When: 3 July 2020
Law stated as at: 3 July 2020
For nearly 60 years, ASA, in its capacity as the independent advertising regulator, has worked to ensure that advertising in the UK complies with the advertising codes. The central principle being that all advertising should be legal, decent, honest and truthful.
However, the codes do not apply to advertising by political parties meaning that the ASA has no remit over such communications. While the ASA want political advertising to be regulated, they claim that as a non-statutory regulator funded primarily by advertisers, they are not the right body to regulate such advertising.
Until the late 1990s, non-broadcast, political advertising (e.g. newspapers, leaflets, and outdoor adverts) was subject to some of the rules in the advertising codes and the ASA had some remit over such advertisements. Only some of the rules applied and there were further exemptions on the rules that required other advertisers to tell the truth.
The Committee of Advertising Practice (CAP) attempted in vain to bring political advertising within the scope of the advertising codes. Their attempt was “all or nothing” and CAP withdrew entirely from regulating political advertisements in 1999 due to “the absence of sufficient support from political parties and our concern about restraining freedom of speech”.
Why regulate non-broadcast political advertising now?
Over the past five years, the UK has seen three general elections, the Scottish referendum and the EU referendum, with the latter sparking a debate about truthfulness and transparency in political campaigns.
In The Electoral Commission’s report on the 2019 general election, the Commission confirmed that voters were “concerned about the use of misleading campaign techniques” and claimed that concerns about truthfulness and transparency have an impact on public trust and confidence. The Commission even went as far as to say if voters lose trust and confidence in political campaigning, “democracy as a whole will suffer“.
There have been calls for political advertising to be subject to a similar independent regulation with which businesses and non-political organisations have to comply.
If not the ASA, then who?
Over the last few years “fact-checking” organisations have come to the fore, including: Full Fact (an independent fact-checking charity launched in 2010), FactCheck (by Channel 4 News) and Reality Check (by BBC News). Fact-checking organisations are not the same as regulators, however, who are subject to judicial review and are required to offer consultations and a right to response.
The creation of such a regulator would require a change within politics; political parties and campaigning organisations would have to agree to be regulated or agree to self-regulate. Such a commitment could hinder political free expression and may require the winning party to honour its election manifesto, this could prove problematic for a government and any attempts to adapt to changing circumstances when in power.
Why this matters?
In the last few months, The Electoral Commission and the ASA have been clear that democracy itself may suffer if the general public lose trust and confidence in political parties and campaign groups.
Turning the current situation around though will require political parties agreeing to be regulated or putting in place a self-regulation framework. While the need for such regulation is required, given that no further elections are planned until 2024, we are unlikely to see a commitment from political parties any time soon and the ASA’s desire to see the regulation of political parties’ advertisements is likely to go unfulfilled.