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    Advertising Law And Political Facebook Ads: Can Control Be Regained?

    On 7 May 2019, the British government officially announced what we all knew – the UK will have to hold the EU elections on 23 May 2019.

    One element of these elections which will be under close scrutiny is how much control is exerted over political Facebook advertisements. In a powerful Ted talk, journalist Carole Cadwalladr, who, along with Emma Graham-Harrison broke the Cambridge Analytica story in the Observer, told Silicon Valley billionaires that they had “broken democracy” following the EU Referendum and President Donald Trump campaigns. Her speech has been viewed by over 1.5 million people.

    We all know something has gone very badly wrong with the democratic process and the door is wide-open for electoral advertising abuse.

    But can it be stopped?

    “What happens on Facebook stays on Facebook”

    In her talk, Ms Cadwalladr states:

    “What happens on Facebook stays on Facebook. Because only you see your news feed and then it vanishes so it’s impossible to research anything. So we have no idea who saw what ads or what impact they had, or what data was used to target these people. Or even who placed the ads, or how much money was spent, or even what nationality they were.”
    “Our democracy is broken, our laws don’t work anymore, and it’s not me saying this, it’s our parliament published a report saying this. This technology that you have invented has been amazing. But now, it’s a crime scene. And you have the evidence. And it is not enough to say that you will do better in the future. Because to have any hope of stopping this from happening again, we have to know the truth.”

    In a report following an 18-month investigation into disinformation and fake news on Facebook, the Digital, Culture, Media and Sport Select Committee called the company and its executives “digital gangsters”. The investigation found Facebook deliberately obstructed the Committee’s inquiry and failed to tackle attempts by Russia to manipulate elections.

    The report also warned that British electoral law is now unfit for purpose and cannot prevent interference by hostile foreign countries which set out to interfere in the democratic process.

    Who regulates political advertising?

    Up until the 1997 General Election, the Advertising Standards Authority (ASA) had some jurisdiction over non-broadcast political advertisements. However, in 2003, following a consultation, the Electoral Committee ruled the ASA should not be responsible for regulating election advertising.

    For now, if you were to ask (and I did) “who regulates social media advertising”, the answer you invariably receive is “no one”.

    According to the Electoral Commission, the rules around political advertising are now out of date. They are pushing for changes, such as rules stipulating that parties must provide evidence of their financial spend on digital advertising and all political adverts leave an imprint, so their source and content can be tracked and examined.

    However, a new study, published in Political Quarterly, by Dr Katharine Dommett, from the University of Sheffield and Dr Sam Power, from the University of Exeter, claims that any introduced regulations must also consider how Facebook algorithms mean the same advertising spend has different results.

    Dr Dommett said:

    “As digital political campaigning grows it is now increasingly difficult for existing regulators to capture the true extent of what is happening online, let alone whether these practices violate democratic norms. The unreliability of existing data on the use of Facebook needs to be acknowledged by regulators if campaigning spending is to be effectively interpreted and understood.
    “The lack of clear information should concern anyone responsible for overseeing the conduct of modern campaigns.”
    “Although Facebook has introduced some new transparency measures, nobody can fully monitor both how it is being used by political parties and the inequalities of access they can face, added Dr Power. “It is also not Facebook’s role to regulate elections. We need to recognise these limitations to think about whether and how existing reporting requirements need to change.
    “Regulators around the world need to think about how to monitor and respond to spending principles that are creating inequalities in the electoral market place.”

    Facebook’s EU election war room

    Facebook has committed itself to cleaning up its act around fake news, setting up a ‘war room’ in Dublin, complete with 40 employees targeted with overseeing the European Union’s parliamentary elections. This comes after the company has come under pressure from regulators. European leaders are considering new policies to force tech giants to rid their platforms of misinformation, hate speech and extremist content and Facebook faces several investigations related to its handling of user data.

    The company has taken some action, it recently banned several high-profile public figures, including far-right U.S. commentator Alex Jones and Nation of Islam leader Louis Farrakhan, because of perceived hateful comments. This has led to President Donald Trump accusing the tech giant of interfering with free speech.
    However, Politico has reported that numerous groups have already circumvented Facebook’s new political transparency tools.

    Final words

    Political advertising law is now grossly unfit for purpose. There needs to be clear regulation, enforced by bodies such as the ASA and Electoral Commission to control the content and the spend of such ads.
    Only then can we see free and fair elections across the globe.

    Tanveer Qureshi is a Legal 500 barrister, specialising in ASA compliance, business to business fraud, health and safety, food standards, civil litigation, and corporate crime. If you require legal representation, please contact directly on 020 3870 3187.

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