Much is made of the democratising effect of the internet. However, the freedom to communicate online has costs, which are sometimes felt by the politicians that are the subject of internet communications. These costs were highlighted by the Labour MP, Mike Gapes who presented a Ten Minute Rule Motion on Tuesday, calling for greater regulations on websites that make negative attacks on candidates during election campaigns. While there are already some controls on third party activities in elections, Mr Gapes told the House of Commons that these rules are not working:
“An enormous number of groups, local and national, do not register, and some organisations have websites. During the last general election, a group called the Muslim Public Affairs Committee UK targeted Labour MPs and candidates, with downloadable leaflets and other material attacking people whom they were trying to get out of Parliament. It was able to put out tens of thousands of leaflets without any restriction-negative material arguing against sitting Members of Parliament and encouraging people to vote for other candidates. In some constituencies where the result changed, Liberal Democrats or other people were elected having been beneficiaries of this negative campaigning. We should tighten up the rules to regulate what can be put on the internet. We could also prosecute people who have downloadable material that does not have imprints. We need to ask the Electoral Commission to take these matters far more seriously, and that is why I am proposing this Bill.”
From this statement, it is not entirely clear whether Mr Gapes is complaining about gaps in the law or that the current law is not being enforced properly. However, there are several areas of concern relating to attack websites.
The first is the anonymity of the attack sites, which Mr Gapes raises when referring to material without ‘imprints’ (ie details of the printer and promoter on the material). Anonymity can be a problem for the reader of the website, as not knowing the source of the negative statement means visitors have less means to assess the credibility of the claims being made. The audience will not know whether the anonymous author has inside knowledge about the politician or is merely a front organisation with a vested interest. Of course, anonymous sources are commonly used in the mainstream media, but at least there an established media entity will vouch for the credibility of the information being published. From the perspective of the politician being attacked, the problem of anonymity lies in not knowing to whom to address the rebuttal (or in other cases, who to sue for a defamatory statement).
In the current election laws, there are already controls on printed leaflets, requiring the identity of the printer and promoter to be included in any election material. While the Electoral Commission advises people to include such details on internet material, this is not a legal requirement. The imprint requirement applies only to printed material. There are statutory powers to extend the imprint requirements beyond printed materials and to web-based materials, but so far these powers have not been used. One of the problems lies in deciding how these requirements could apply to the various types of digital communication – for example a text message or tweet could not include such full disclosure in the text itself. Alterative transparency requirements (if any are needed) will need to be formulated for internet communications.
Whether anonymity is a problem is open to debate. To many, the ability to speak anonymously is regarded as a strength of internet communications. However, whether there is true anonymity online is questionable – there are various ways (including court orders) in which it is possible to discover the identity of a speaker on a website or blog. These means often require either some technical skill or resources. To go further and require websites to disclose the identity of person speaking or moderating would open this information up to all the audience. The danger with such a requirement lies in creating a chilling effect on some speakers (for example, those who fear the consequences of making their political views public), or at the very least may impose a bureaucratic hurdle which may discourage some election speech (a point made by Robert Halfon MP in his reply to the House of Commons).
A second problem raised by Mr Gapes’ statement is that the material published online is often negative. However, there is nothing wrong with a negative attack in itself. If a negative statement is true and relevant to the election campaign, then it can provide valuable information to voters. The problem is that people may be more willing to make unfounded attacks on a politician if they remain anonymous and thereby unlikely to be held accountable for the statements. Some transparency may discourage more reckless claims being made online and would require the speaker to stand by his statement (the argument along these lines being that a chilling effect is not always a bad thing, as long as it chills the right type of speech).
Aside from the two points above, there is also a broader issue of what third parties should be forced to disclose. People may be interested to know who is financing a website. Under the current legislation, third parties spending over a certain amount on election material are required to register with the Electoral Commission. Despite an increasing number of political websites commenting on election issues, most did not register as third parties in the 2010 General Election (an exception being the campaign group 38 Degrees). As I told the Committee on Standards in Public Life last year, it is not clear why websites are not being caught by the election regulations. In many cases, this will be because the costs of running the website do not meet the threshold for registering as a third party. However, in the case of larger scale websites that employ staff, that threshold is more likely to be met. This is a matter that requires further investigation.
Third party activities during elections have long been the subject of regulations, but it is not clear at present how these controls are or should be applied to internet communications. I can certainly see hazards in some regulatory strategies and would not want to see any heavy-handed controls. The complexities of the issue provide a strong incentive to ignore these questions. However, the role of third party activities online needs to be considered if elections are to remain fair, and Mike Gapes’ contribution on Tuesday is important in acknowledging the potential problems attack sites can pose.
Jacob Rowbottom is a Lecturer at the University of Cambridge and author of Democracy Distorted.