Political adverts – freedom to misinform?

Promises of an additional £350m per week to be given to the NHS, posters featuring "white thugs" shouting at vulnerable old ladies, and billboards plastered with images of a flood of new refugees. These are just a few of the wildly misleading, harmful and offensive adverts that featured in the build-up to the EU referendum on 23 June.

In the UK, companies are required to ensure that their advertising meets the standards set by the Committee of Advertising Practice (CAP) including the requirement for adverts to be "legal, decent, honest and truthful".  These rules are policed by the Advertising Standards Authority (ASA), the UK's independent regulator. The ASA has the power to require advertisers to withdraw or amend adverts that are in breach of advertising codes. In addition, legislation such as the Consumer Rights Act 2015 and the Misrepresentation Act 1967 offer protection to consumers by allowing them to get out of a contract which has been entered into on the basis of false representations by the seller or when goods are not as described.

Surprisingly, political adverts fall outside of the scope of the ASA's powers and there is no redress available to voters who have been influenced by false or misleading political adverts. Given the reliance of the electorate on political advertising when making decisions on how to vote, it is arguable that politicians and political groups should be held accountable for claims made in the lead up to elections and referendums. Taking the EU referendum as an example, much of the press in the immediate aftermath demonstrated voters' outrage at having been outright lied to in campaign adverts. However, despite receiving over 350 complaints, the ASA confirmed that it was "powerless" to deal with these referendum-related adverts.

Up until 1999, non-broadcast political advertising did, to a certain extent, fall within the scope of some of the advertising codes.  Political adverts could be investigated if they adversely portrayed a public figure without permission, but not if there were allegations that the advert was dishonest. However, following the introduction of the Human Rights Act 1998, questions were raised over the suitability of regulation of political adverts on the basis that it could potentially interfere with freedom of speech. 

Whilst it is clearly fundamental to the democratic process to protect freedom of expression, is it justifiable to do so in a way that makes politicians completely unaccountable?  Interestingly, in other sectors, freedom of expression does not provide free rein to publish inaccurate or misleading information.  For example, the importance of freedom of the press is paramount, yet newspapers and magazines are still held accountable for what they publish by the Independent Press Standards Organisation.  

Guy Parker, Chief Executive of the ASA cites a lack of political buy-in as the reason for the ASA being unable to regulate political adverts. Other commentators have pointed to a lack of resources available to the ASA to investigate political as well as commercial adverts. Whatever the reason, clearly there is public appetite for the regulation of political adverts. A petition calling for it to be made illegal for any UK political figure to knowingly lie or mislead has received over 78,000 signatures whilst another seeking an independent office to monitor political campaigns has received in excess of 165,000 signatures.

Consumers are protected against misleading, harmful and offensive advertising. The electorate should be afforded the same courtesy.