Digital imprints and the spread of misinformation in elections

Since the UK Referendum of 2016 there has been exponential growth of online engagement in electoral ballots. Alongside this, we have seen debate about what can you trust online, and the expression ‘misinformation’ has become commonplace. Elections now come with lots of online activity on platforms like Facebook and X/Twitter and increasingly also on TikTok. As Reuben Solomon of Ridgeway (a former Downing Street head of digital) observed: “Where edgy memes thrive, the TikTok ecosystem offers a way to engage with a demographic that traditional media often misses.” The UK Labour Party has made a huge investment in TikTok, and achieved over three million likes. The Conservative Party is trying to keep pace but has only half a million likes.

Election law is not a sexy fast-moving area; for example, most of the law dates from 1983 and that law has its origins in the Chartists movement that led to the Ballot Act of 1872, the first major step toward creating what we think of as free and fair elections enshrined in law. There have been various changes made in the past 25 years, but perhaps the most important is found in the Elections Act 2022 (the Act) which seeks to address the growth in online campaigning and achieve a greater degree of confidence in what you read. This included introducing digital imprint rules, and this will be the first General Election where it is in force.

What is an imprint?

An imprint is something that has existed for a long time for printed material but is new to the digital world. The ‘imprint’ is designed to tell you who really posted/produced what you are reading. It is to ensure that the reader knows who is responsible for the material. It is intended to provide transparency for voters, so that a cunning or amusing meme or article online is not anonymous and we know who created it. This is also important in helping track down the right people for investigation of electoral offences.

For example, some posters of Conservative candidate Robert Largan have red and light blue backgrounds that invoke Labour and Reform, yet the candidate is standing for the Conservatives. A casual reader might not realise that, but the imprint tells you that the message is from the Conservatives, because the bottom left of the imprint used online tells you it is promoted for Mr Largan, a Conservative. By this addition we know who created and published it. The bigger problem is that many outside direct campaigning circles just do not appreciate the legal obligation to have an imprint.

Regulated digital material includes online ads, social media posts, websites, and electronic billboards. Paid-for digital campaign material is required to have an imprint. Material that has not been paid for, for example social media posts, is called organic material, and only ‘may’ need an imprint.

If organic material is published by a candidate or registered campaigner (or on their behalf) during an election campaign and is encouraging people to vote in a particular way, it must have an imprint. This includes any material that can be reasonably regarded as intended to promote a candidate or party, or persuade a voter to vote for a particular candidate or party, or vote in a particular way in a referendum. So a person who is interested in politics and uses social media to encourage voters to vote a particular way could fall foul of this. Penalties for failing to use an imprint when required include unlimited fines as a summary conviction.

Under the Political Parties, Elections and Referendums Act 2000, registered parties and non-party campaigners are subject to imprint rules, with compliance and sanctions for failing to comply with these rules generally regulated by the Electoral Commission. The Act makes the Electoral Commission responsible for enforcing and sanctioning where digital material relates to parties or non-party campaigners, and it can use its civil sanction powers or refer to the police.

To stop ‘misinformation’, it will require a huge effort from returning officers, the Electoral Commission and police actively monitoring and taking enforcement measures. Only then may there be a change in behaviour as to what is posted online. Without monitoring online content to assess if it is spreading misinformation, this alteration in the law will not make a difference as to what we can trust, but it might make it easier to track down who is posting things.

If you have questions or concerns about election law, please contact James Tumbridge.