Who will regulate digital political ads?
9 August 2019
Nearly two-and-a-half-years ago, I did a ring-round of Britain's regulators to see if any of them might fancy regulating political advertising on social media, particularly outside an election period. It was obvious then, in the aftermath of the Brexit referendum and election of President Trump, that political campaigning had mostly shifted online. Even if a lot of leading politicians were slow on the uptake - still spending time courting print editors and columnists, for instance, whose influence has waned - they were increasingly surrounded by campaigners who did understand the world had changed. Campaigners like Dominic Cummings. Anyway, the regulators made various sounds that bore a striking resemblance to what you heard the last time you were juggling a hot potato. The Electoral Commission said its focus is campaign finance. The Information Commissioner's Office (ICO) said its focus is personal data. The Advertising Standards Authority (ASA) said it doesn't do political ads. Fair enough. All were correct. Regulators regulate what they are told to regulate. It takes legislation, designed by parliamentarians - who ideally have a keen eye for detail and deep understanding of technology - to change the scope and power of a regulator. Many months and moons on, I did a similar ring-round. The Electoral Commission said its focus is campaign finance. The Information Commissioner's Office said its focus is personal data. The Advertising Standards Authority said it doesn't do political ads. To quote a recent prime minister: "Nothing has changed. Nothing has changed." Which is not to say that nothing has changed in the broad - and it is very broad - area of regulating the internet. In fact, the UK has done quite a lot here, even, arguably, taken a lead. Its Online Harms White Paper pledged to bring about the toughest laws for the internet anywhere in the world. The only trouble with that is, it was finalised in the furnace of a Tory leadership campaign, by a home secretary (Sajid Javid) who is now chancellor, and a culture secretary (Jeremy Wright) who has left his post. The ICO has earned respect, and some admiration, across the world for its tough stance on Facebook, against whom it imposed a heavy fine - albeit a paltry footnote in the tech giant's global turnover. And of course General Data Protection Regulation, better known as the European law GDPR, has given consumers much greater rights and awareness of the unspoken contracts they adhere to when they surf the web. But this was European rather than specifically British regulation. The Electoral Commission point out that some of this terrain is regulated. But it urgently wants new powers to do it better. They say all digital campaign material should have an imprint saying who is behind the campaign; that spending on election or referendum campaigns by foreign organisations or individuals should be prohibited; that fines should be bigger, and that their powers to obtain information outside a formal investigation should be strengthened. In an interview for BBC News, Louise Edwards, the head of regulation for the Electoral Commission, is open about the remaining vulnerabilities of our current system. But there is, frankly, something weird going on here. Everyone agrees that we urgently need new legislation in this terrain. Indeed Damian Collins MP, the chair of the Digital, Culture, Media and Sport Committee, says the time has come for emergency legislation. "Our electoral law is hopelessly out of date. And what that means is that people can set up dummy campaigns promoting causes that are there to support an official candidate, but hide who's doing it, hide where the money's coming from," he said. "You can use technology to effectively launder money into political campaigns in micro donations including from overseas and our electoral law was established to make sure voters could see who's campaigning on what, who's paying for it, who it's there to promote. And yet technology allows people to sidestep all of those rules and regulations." He went on: "I don't understand why the government is taking so long. I think we should be looking at emergency legislation to bring our electoral law up to date. At least to establish the basic principles that the same requirements that exist in a poster or a leaflet should exist in an online ad and on Facebook as well." If Damian Collins MP can't understand why no new legislation has been passed, what hope the rest of us? The usual explanation proffered is that Brexit took up most of the bandwidth of Theresa May's administration, stifling the efforts of many reformers. It doesn't help at all that digital matters cut across several government departments; or that the rate of churn among cabinet ministers at the Department for Digital, Culture, Media and Sport (DCMS) is, at least to the civil servants who have to deliver their policies, an unfunny joke. Nicky Morgan is the eighth secretary of state at the DCMS in the past nine years. In the same time, Google has had a single boss in the UK, Matt Brittin. Moreover, regulating technology is exceptionally hard. Algorithms and coding are understood by very few. Categorising companies, which much of company law depends on, can be near impossible, given hugely different organisations might fall under the same broad banner. For instance, under "social media platform" you might group Facebook, whose revenues are in the tens of billions, with an app developed by dog-lovers in Huddersfield who want to share pooch pics. Above all, the companies that need the most regulation are usually a) American; b) global in reach; and c) domiciled in places where they can limit their tax liability. Getting international agreement on how to approach these complex issues is very tough. And perhaps there is another reason why regulation of this sector has been slow. I interviewed  Katharine Dommett, director of Sheffield's Crick Centre for the Public Understanding of Politics, who is now a special adviser to the Lords on these matters. Like the Electoral Commission, she acknowledged that Facebook in particular has made significant strides in opening itself up to scrutiny. The Facebook ad library is manna from heaven to geeks, but something short of that to journalists. You can see plenty about who is advertising, and who is being reached by particular adverts; but it is still not always clear who is paying for these ads. As I wrote in another blog post - The constant influence of dark ads - political donors who want to influence politics while avoiding the public scrutiny that comes from giving money directly to parties or politicians see social media as a great opportunity. According to Dr Dommett, the significant but crucially limited strides made by big technology companies - who focus principally on growing their bottom line, while legislators have a thousand more worries and pressures every morning - have allowed them to set the terms of this debate. It's important to understand that the likes of Google, Facebook and Twitter are radical extensions of the 20th Century advertising industry. They are giant persuasion machines, which we feed with data every time we scroll, click, like and share. Each of our actions allows them to add detail to their picture of us. That, in turn, gives those with a message to sell useful information about where to place their ads. Messages could be personal, commercial or political. We have advanced and generally approved an effective regulation of adverts. We have advanced and generally respected some very particular aspects of our politics. But stick the two together, add in the internet, and you have a mess. The influential campaigning group Who Targets Me has reported recently that Conservative spending is "creeping up". There was a big splurge after the ascension of Boris Johnson to the job of prime minister. This fact, and the re-assembly of the Vote Leave team under the leadership of Dominic Cummings, has re-ignited interest in this vast regulatory void in our democracy. But this is about much more than one man, one party, or one plebiscite. Across the political spectrum and across the world, social media is giving a platform to powerful forces who are able to avoid scrutiny. While it is true that, for reasons outlined above, coming up with effective regulation is tough, it's also true that at some point voters will begin to wonder why, years after we first started talking about it, voters are still being influenced by untraceable money. If you're interested in issues such as these, you can follow me on Twitter or Facebook; and subscribe to The Media Show podcast from BBC Radio 4.
But there is, frankly, something weird going on here. Everyone agrees that we urgently need new legislation in this terrain. Indeed Damian Collins MP, the chair of the Digital, Culture, Media and Sport Committee, says the time has come for emergency legislation. "Our electoral law is hopelessly out of date. And what that means is that people can set up dummy campaigns promoting causes that are there to support an official candidate, but hide who's doing it, hide where the money's coming from," he said. "You can use technology to effectively launder money into political campaigns in micro donations including from overseas and our electoral law was established to make sure voters could see who's campaigning on what, who's paying for it, who it's there to promote. And yet technology allows people to sidestep all of those rules and regulations." He went on: "I don't understand why the government is taking so long. I think we should be looking at emergency legislation to bring our electoral law up to date. At least to establish the basic principles that the same requirements that exist in a poster or a leaflet should exist in an online ad and on Facebook as well." If Damian Collins MP can't understand why no new legislation has been passed, what hope the rest of us? The usual explanation proffered is that Brexit took up most of the bandwidth of Theresa May's administration, stifling the efforts of many reformers. It doesn't help at all that digital matters cut across several government departments; or that the rate of churn among cabinet ministers at the Department for Digital, Culture, Media and Sport (DCMS) is, at least to the civil servants who have to deliver their policies, an unfunny joke. Nicky Morgan is the eighth secretary of state at the DCMS in the past nine years. In the same time, Google has had a single boss in the UK, Matt Brittin. Moreover, regulating technology is exceptionally hard. Algorithms and coding are understood by very few. Categorising companies, which much of company law depends on, can be near impossible, given hugely different organisations might fall under the same broad banner. For instance, under "social media platform" you might group Facebook, whose revenues are in the tens of billions, with an app developed by dog-lovers in Huddersfield who want to share pooch pics. Above all, the companies that need the most regulation are usually a) American; b) global in reach; and c) domiciled in places where they can limit their tax liability. Getting international agreement on how to approach these complex issues is very tough. And perhaps there is another reason why regulation of this sector has been slow. I interviewed  Katharine Dommett, director of Sheffield's Crick Centre for the Public Understanding of Politics, who is now a special adviser to the Lords on these matters. Like the Electoral Commission, she acknowledged that Facebook in particular has made significant strides in opening itself up to scrutiny. The Facebook ad library is manna from heaven to geeks, but something short of that to journalists. You can see plenty about who is advertising, and who is being reached by particular adverts; but it is still not always clear who is paying for these ads. As I wrote in another blog post - The constant influence of dark ads - political donors who want to influence politics while avoiding the public scrutiny that comes from giving money directly to parties or politicians see social media as a great opportunity. According to Dr Dommett, the significant but crucially limited strides made by big technology companies - who focus principally on growing their bottom line, while legislators have a thousand more worries and pressures every morning - have allowed them to set the terms of this debate.
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Why the inaction?