Digital Imprints, GDPR and Enforcement
Yesterday ORG submitted its response to the Cabinet Office’s technical consultation on digital imprints. These rules are designed to ensure that individuals can see the origin of a political ad – in essence, who paid for it- in order to enhance transparency and accountability in politics.
The Government’s proposals discuss issues such as whether imprints should cover paid or organic content, registered and non registered campaigners, as well as where an imprint should be located on a political ad. Whilst these are all relevant concerns, ORG believes the proposals fail to consider broader issues around enforcement and data protection.
Political adverts should be compliant with GDPR.
For ORG, this means that all adverts should contain information about the relevant data controller and a link to the organisation’s privacy policy. This policy should contain information such as any data brokers that personal data have been purchased from and products used (for example the Experian product Mosaic).
In addition, data subjects are entitled to know why they are receiving an advert (for example, its targeting parameters). This should be provided through platforms themselves if possible. Although the platforms have made some efforts here there is still not parity.
Finally, data subjects are entitled to be able to see ads they have been served after the fact. For ORG, the simplest way of ensuring this would be to provide individualised ad libraries.
The effect on freedom of expression.
The proposals have been made in line with the UK’s existing liability regime.
The UK’s existing liability regime draws on the EU eCommerce Directive, which prohibits general monitoring requirements. This could however conflict with proposals in the upcoming Online Harms Bill. The Government should continue the prohibition on general monitoring to stay aligned with the eCommerce Directive and ensure the success of digital imprints.
Similarly, ORG argues that both registered and non registered campaigners should have to include imprints for both paid and unpaid for content. Legitimate concerns have been raised however that this could place onerous burdens on people trying to express their politics online. Not every political post is an advert. How best then, to safeguard individual expression?
The Scottish government has a novel response to this. They have recently published legislation that will require imprints for the above materials, but will include an exemption for individuals expressing their personal opinion. ORG supports these proposals and will monitor their success or failure in the upcoming 2021 Holyrood elections.
Enforcement (or lack thereof)
The Conservative and Unionist Party, and the Government, have made a worrying series of attacks on the Electoral Commission. A regulator must be independent, and have teeth, to be effective. The recent failings of the ICO in this regard demonstrate what happens when a regulator drags its feet on enforcement.
As a result of the Conservative dominance of the Speaker’s Committee on the Electoral Commission, the chairman of the Electoral Commission has reportedly been pressured into leaving and plans to enhance the Commission’s prosecutorial powers shelved.
ORG believes that the Electoral Commission should have enhanced powers to prosecute individuals who have broken electoral law. At a minimum, the current maximum fine should be increased. Currently, it is too easily dismissed by campaigns as the ‘cost of doing business’.