Election ’24: Publishing advocacy materials or political statements

Here are some key issues to look out for when publishing advocacy materials or political statements ahead of a general election (many of these issues will apply regardless of whether there is an election coming, but of course public activity may be more likely to be scrutinised in the sensitive pre-election period):

Election law

Spending limits on ‘regulated’ content

In the run up to an election, candidates, political parties and non-party campaigners (including issue-based campaigners) engaged in ‘regulated activity’ will be subject to spending limits and in some cases registration and reporting requirements (generally enforced by the Electoral Commission). The framing, content and audience of advocacy materials can determine what is regulated and what is not – see factsheet 1 for more detail.

Transparency requirements for election material

Election law currently requires that printed ‘election material’ contains an ‘imprint’ – this is a transparency statement, setting out who is behind the material. From November 2023, this requirement will extend to digital campaigning and election material too (even including audio only content such as podcasts).

These rules will not apply to all campaigning and advocacy material, and will only apply when certain triggers are met – largely connected to whether the material can be seen as intended to influence an electoral event.

We will be publishing another factsheet explaining these rules in more detail, and how they might apply to your advocacy materials.

Who will be reading it

Political parties and candidates have the right to send a freepost mailing to all those on the full electoral register, regardless of the recipients’ wishes. Apart from that, the Information Commissioner’s Office (ICO) treats any political campaigning addressed to individuals in the same way as any form of direct marketing, regulated by the UK GDPR and associated UK data privacy laws. Any campaigning by email or text to individuals should only be to those who have consented to that form of contact. Look out for our upcoming factsheet on data privacy compliance when campaigning.

What will it say

Fundraising and advertising regulation

Both fundraising and advertising regulation can apply to public advocacy and campaigning materials, enforced by the Fundraising Regulator and the Advertising Standards Authority respectively. These regulatory regimes broadly seek to ensure that the content of public communications caught by the regimes are not misleading and are socially responsible – for example, by requiring that quotes used in materials are real and not made up (or if they are, that it is clear they are made up), and not causing serious offence. Often, advertising regulation will not apply to advocacy organisations if the marketing communication is in ‘non-paid for space’, unless there is a fundraising request included with the communication.

Intellectual Property

You should also consider what content you are using in campaign materials and your right to do so  – videos and sound snippets are all readily available on the internet, and with social media continuing to change how we digest and share information, it is very easy to fall into the trap of using them unlawfully. It’s really important that you’re asking the question; ‘Who owns these materials, and do we have permission to use them?’ Be mindful too of whether an individual can be identified from your content – for example in photographs – in which case this is likely to be personal data, which is protected in law. Be aware that company names and logos will be protected from unauthorised use as trade marks or copyright works.

False statements

Under election law, it is a criminal offence for anyone to make a false statement of fact about an election candidate’s personal character or conduct for the purposes of influencing an election result, unless they can show they believed the statement to be true and had reasonable grounds for believing it.

Defamation

Defamation law applies where statements are made that harm a person or organisation’s reputation.  If someone complains that you have published a defamatory statement about them, various defences may be available to you.  For example, you may be able to prove that the statement is true.  Truth is a complete defence to a defamation claim, but the burden is on the person making the statement to establish the defence.  It is therefore important to ensure that you have credible evidence to support statements you make in campaigning and advocacy materials, and doing so will help to manage risks in other areas covered by this note (such as election law offences relating to false statements about election candidates, and compliance with advertising law). Other defences include honest opinion and publication on a matter of public interest. This is a complex area, and obtaining a legal review before publication is often a sensible and cost-effective precaution.

Bates Wells can help you to navigate these rules and maximise the impact of your campaign activity ahead of an election. Please contact Jess Collings for information