Written evidence submitted by Bethany Shiner

Written evidence submitted by Bethany Shiner, Lecturer in Law at Middlesex University, London to the Digital, Culture, Media and Sport Committee regarding its interim report on its inquiry into Disinformation and ‘fake news’

Executive Summary

This submission is made in response to the Committee’s statement within its interim report which welcomed submissions on the recommendations it had set out in that report.  The reports by the Information Commissioner’s Office (ICO) and the Electoral Commission are also considered, as far as they are relevant to the Committee’s interim report. This submission is a summary of extracts from a forthcoming peer-reviewed article.[1]

1. The current emphasis upon a few bad players (corporate and foreign interests) skews the narrative, for there would be no market for these techniques if politics did not invest in them. This must be also acknowledged.
2. Proper consideration should be given to recent calls for a Code of Conduct of political online communication.
3. However, this should not be confused with the ICO’s suggestion that a Code of Practice is developed along with social media platforms, political parties and the regulator as to the use of data in politics. This suggestion could enable private interests to agree forms of regulation.
4. Comprehensive electoral law reform should be put on the legislative agenda. Although some of the proposed reforms enabling the Electoral Commission to better scrutinise campaign spending should be supported, a much more comprehensive review should be undertaken urgently.
5. The DCMSC’s proposals for dealing with the use of micro-targeting to influence how people vote are helpful. However, more thought should be given to whether the DCMSC recommendations would give corporate interests the ultimate judgement as to which political advertisements should be disseminated online and which should not.
6. Article 80(2) of the General Data Protection Regulations (GDPR) should be incorporated into the Data Protection Act 2018 as that would provide a much more effective mechanism for holding controllers to account for systemic practices because any body, organisation or association would have the right to lodge a complaint with the supervisory authority without first needing authority from individual data subjects.

Review of suggested reforms

1. The fundamental issue does not relate to closing regulatory gaps but ensuring the political ecosystem balances out more fairly and imbues democratic principles like fairness and transparency. It seems that the scandal around data misuse for political purposes has served as an illustration of the huge distance between those elected to represent and those being represented - with companies exploiting that gulf for profit. Tweaking the regulatory system will not fix this problem. Focusing on whether, how or why the electorate is influenced misses the opportunity to think about how to make political communication more transparent, more honest, and more respectful of the electorate. Until we tackle this fundamental issue - whether through codes, regulations, or civil or criminal sanctions – the same campaign practices, marked by hyper-partisan messages, misleading information and, at times, disinformation, are likely to continue dominating the relationship the electorate has with its representatives.
2. Proper consideration should be given to whether there should be a Code of Conduct in political campaigning. The idea of a Code of Conduct to establish minimum standards of online communication has recently re-emerged in the Committee on Standards in Public Life review of intimidation in public life;[2] the Constitution Society report on data and democracy;[3] and, the ICO’s report on the use of data in politics.[4]
1. Social media exposes the rules on political advertising to be inconsistent and inadequate in meeting the stated aim of controlling political advertising. Paid political campaign advertisements are banned from television and radio broadcast (party broadcasts are allowed because they are not classed as advertising) but political advertisements sent to individual voters on social media, however, are unregulated.[5] Although, the Neill Committee on Standards in Public Life recommended that a code of best practice should apply to political advertising in the non-broadcast media,[6] this was rejected by the Committee of Advertising Practice (that writes the Advertising Code).[7] In 2004, the Electoral Commission considered a legal framework for political advertisements but cautioned that such regulation would be inconsistent with other non-broadcasting advertising regulation and potentially conflict with free speech.[8] Even a regulatory code was considered “inappropriate and impractical…given the often complex and subjective nature of political claims.”[9] This anomaly means that an individual can complain about misleading claims on consumer and departmental[10] advertisements but political advertisements complained of being misleading, harmful or offensive cannot be investigated. If this is still the most desirable regulatory position, then it should once again be justified after careful consideration in light of the evidence presented to the DCMSC regarding online political advertising.
3. The ICO called on THE Government to develop a statutory Code of Practice for the use of personal information in political campaigns which will form part of a broader legislative vehicle and contain guidance. The ICO seeks to promote dialogue between the regulators and the Government, and encourages a comprehensive reflection on corporate and political practices. 
1. From the perspective of the political establishment, the capacity to effectively persuade is critical to promoting their political agenda and reaching out to voters in an increasingly polarised and fast-paced political ecosystem. For the sake of promoting the core principles of open debate, transparency, trust, respect, responsibility and fairness something needs to give. Reform based only on commercial and individual wrongs neglects to fully embrace these principles and introduce them back into political communication with the electorate.
2. Further, presenting Codes of Practice as a solution to the issue is problematic. Codes of Practice are generally non-binding, they cannot impose sanctions and there is no available remedy for breaching the Code of Practice. It would be “an unacceptable constitutional departure to allow private parties to agree a species of law between themselves” which Codes of Practice settled between political parties and overseen by the Electoral Commission (or any other regulator) would do.[11] This may be even more concerning when Codes include agreements with corporate parties as well. Another deeper problem relates to the chilling effect of Codes that can discourage certain behaviours that are not unlawful but are ruled-out of ‘best practice’ codes.  It is the law that must be obeyed and Codes cannot act as substitutes in the absence of laws.
4. Electoral law reform should be put on the legislative agenda. This has been called for by the Electoral Commission and the Law Commissions that completed a review of current electoral laws which was not acted upon by parliament at the time.[12]
1. The Electoral Commission’s recommendations are sensible and should be supported. They include: that spending returns should include a specific category of social media spending (currently reported as ‘advertising’ or ‘unsolicited material to voters’); more detailed and meaningful invoices for digital activity to close a loophole which enables the much higher national spending limit to be directed locally towards swing seats and key constituencies breaching the lower local spending limits; an increase in the fine it can sanction for breaching electoral law; executive clarification on foreign donations and campaign spending; social media action on paid-for political advertisements originating from outside the UK; and, an improvement on the rules and deadlines for reporting spending for scrutiny during or shortly after elections or referendums.[13]
2. However, a wholesale review is needed and must go further than the recommendations set out above and further than the Law Commissions’ 2016 recommendations for reform which prioritised unifying the pieces of electoral legislation, modernising procedures and processes and improving the way to challenge election outcomes. A complete overhaul is needed to ensure electoral offences reflect the 21st century. Modern election law[14] continues to be founded upon practices such as intimidation, bribery, corruption or coercion that were rife in Britain until the introduction of several Acts of Parliament in the late 19th Century.[15] Electoral law must reflect the reality of contemporary political campaigning, the behaviour of elected representatives, political candidates and parties as well as the way in which people can be coerced or manipulated, which is much more than physical intimidation.[16]
3. Furthermore, some recommendations for reform need more consideration. For example, although there is an inconsistency which means political advertisements sent online are not subject to the same regulatory requirements as printed materials, the suggestion that digital political material must also contain imprints is fraught with difficulties which could undermine the effort to standardise requirements of political materials.[17] Thousands of political adverts, and other material like videos or memes, are disseminated online every day. How will this content be regulated to ensure political material conforms to the imprint requirement? Facebook will not readily accept this burden which may require expensive human moderators to make subjective and contextual judgement calls. Also, how will material that does not include an imprint be removed considering that it is not possible to delete all traces of a post, especially if it gets shared a lot? There are ways around the imprint requirement such as paying people to post messages of support as ordinary users or by relying on the organic spread of material on social media without paying for it.
4. The Commission also proposed a social media online database of paid-for political advertisements, which social media companies already said they would implement,[18] instead of endorsing a more robust idea of creating a central public register of online political advertisements that would not be left to social media companies. Considering the rate of micro-targeted advertisements during the UK-EU referendum, there could be billions of advertisements registered.
5. The DCMSC called for the Electoral Commission to establish a Code for advertising through social media during election periods and consider whether social media campaigning should be restricted during the regulated period to registered political organisations or campaigns.[19] This could work in tandem with the suggestions that social media companies and intermediaries work closely with regulators and advise political parties on transparency and accountability when using data to target voters on those platforms,[20] and that social media companies improve their policies on campaign material and advertising for elections and referendums in the UK. However, there are several issues to consider.
1. The DCMSC proposed a new category for technology companies which is neither platform or publisher, but something in between that establishes some liability to act against "harmful and illegal content".[21] Much greater consideration must be given to how intermediaries can monitor online political content (to determine what it harmful or illegal) while preserving freedom of speech and not enforcing rules unfairly or in a discriminatory way. Further, serious thought must be given to whether such power should be delegated to technology companies.[22]
2. To illustrate, Facebook already engages in political narrative sharing, information control and emotional manipulation.[23] A randomised controlled trial of political mobilisation messages delivered to 61 million Facebook users during the 2010 US congressional elections showed that the Facebook messages “directly influenced political self-expression, information seeking and real-world voting behaviour of millions of people. The messages not only influenced the users who received them but also the users’ friends, and friends of friends”.[24] Such digital interventions can be heralded as promoting democratic engagement, especially when perceived as being neutral or civic. However, the same techniques can be used to suppress democratic engagement or shape democratic discourse according to malign or corporate interests.
3. Another example being Facebook's intervention in the campaign on the Irish referendum on the Eighth Amendment when, after public pressure, it blocked advertisements that originated from outside of Ireland. Google blocked all advertisements on its search engine and on YouTube that related to the referendum.[25] Such an intervention is in the gift of intermediaries that at once recognise the influence of foreign advertisements by banning them whilst maintaining that although they are not publishers, they are responsible enough to make the right judgement calls as moderators. The potential for inconsistency grows if such action becomes the basis for a much broader range of online interventions. This action came late in the campaign cycle and was an unforeseen intervention disadvantaging some campaign groups because it disrupted campaign strategies. Interventions such as this should be predictable, consistent and transparent.
4. Social media platforms are being urged to introduce transparency features with the ICO and the Electoral Commission being consulted on those features and completing evaluations.[26] Facebook has said it is developing tools to increase transparency in political advertisements which includes a verification process requiring advertisers to be resident in the country holding an election. However, it is straightforward to alter the location as recorded on a Facebook account or to change the IP address of the device being used to access Facebook or any other online platform.
5. The DCMSC’s proposed ban on micro-targeted political advertising through Facebook 'lookalike audiences' where users have requested not to receive political adverts, and a national minimum limit for the number of voters sent individual political messages. This was a compromise on the suggestion of a total ban.[27] But, should digital political advertisements and micro-targeting be banned entirely? As explained in relation to imprints, there are ways around moderate or partial bans on political digital content and regulations can quickly become out of date. Yet, a ban could dampen down political engagement as people would be forced to return to traditional media when every other part of our life is becoming digitalised.
6. Article 80(2) GDPR provides any body, organisation or association the right to lodge a complaint with the supervisory authority, independent of a data subject’s mandate, if data rights may have been infringed as a result of processing. Yet, section 187 DPA 2018 excludes article 80 and limits organisations or bodies to acting on behalf of data subjects only when data subjects have authorised them to do so. Article 80(2) GDPR, if incorporated into the DPA 2018 after the statutory review period (or sooner),[28] would provide a much more effective mechanism for holding controllers to account, through lodging complaints and seeking judicial remedies and compensation, where individual data subjects may not be able to or may not even know there are grounds to do so.[29] The requirement for authority from individual data subjects is problematic as many data subjects do not know that their data has been misused. If a body, organisation or association has reason to suspect that many data subjects’ data is being misused there should not be unnecessary barriers to acting on behalf of data subjects. The DCMSC should call for article 80(2) to be incorporated immediately. If, for arguments sake, it was effective at the time of the UK EU-referendum (which is could not have been as the GDPR did not take direct effect until afterwards), then the ICO, as the supervisory authority in the UK, may have been able to intervene and investigate much sooner.

October 2018