Election law: Who targets you?

Over the past two years we have seen a stream of dramatic elections in the UK and beyond. Issues like fake news and the use of social media for political campaigning have been of increasing concern to those trying to understand how our democracies are changing.

As social media and the ways that we engage with the world change, the regulatory, legal, and ethical tools for navigating the new landscape have been slow to catch up. There is no doubt that social media is having a fundamental effect on our democracy and it is crucial that we develop the tools we need to ensure we continue to live in and shape the society we want.

But trying to pin down exactly what fake news is or drawing the line between what is and is not legitimate political campaigning has been extremely difficult. The lines are blurred. Taking steps to ban fake news may well have the undesirable effect of curbing freedom of expression and legitimate dissent. Branding something as fake news is an effective way of silencing alternative viewpoints, however credible they may be.

We are all used to direct political campaigning, billboards, leaflets through the door, canvassers, and party political broadcasts – we can see what they are and decide what we think about them. But targeted advertising on social media is different. It doesn’t announce itself as political advertising and it is seen only by the person it is designed to be seen by.

Canvassers may have information about households that indicates whether or not they are likely to be sympathetic before they knock on the door, but targeting through social media is based on a much more subtle analysis of who you are and how your thoughts and voting behaviour might best be swayed. Data gathered through social media use has the power to let campaigns directly into your mind without a filter.

The use of targeted social media campaigning to affect our vote is not restricted to the ‘behavioural micro-targeting’ technique used in the Trump campaign and, according to some reports, in last year’s referendum (see Carole Cadwalladr in The Observer: ‘The great British Brexit robbery: how our democracy was hijacked’). It is widespread and used across the political spectrum, but there has been little discussion about whether or not we think this is acceptable, and if we don’t, what we are going to do about it.

In the UK, there have been reports that the Information Commissioner’s Office is looking into the possible misuse of personal data during the EU referendum and has issued guidance to all political groups in the general election. The Electoral Commission has launched an inquiry into possible failures by Leave. EU to disclose campaign spending, including the provision of pro bono services for social media campaigns.

However, these investigations are only nibbling around the edges of the potential problem because, as yet, we do not have an appropriate legal or regulatory framework that sets out what is and what is not acceptable political campaign activity in the era of social media.

In the absence of such a framework, the launch of new free software ‘Who Targets Me?’, which will allow social media users to identify ‘dark adverts’ on their social media feeds and see which political groups are targeting them, is a step forward. Its website declares: ‘For the good of democracy, it’s time to throw some light on dark ads.’ But once we know what we are dealing with, we need to decide how to deal with it. If we value democracy, we need to design frameworks to protect it in the new reality.

Susie Alegre is a barrister at Doughty Street Chambers

@DoughtyStPublic

www.doughtystreet.co.uk