Does Labour’s attack ad prove we need the ASA to “Take Back Control” of political advertising?

Those of us who worry about the unregulated nature of political advertising in the UK are usually driven by our anger about Boris’s big lie on the side of the Brexit Bus. You know, the one about the EU, Brexit, £350 million and the NHS. That probably makes us Remoaners in the eyes of many people, which then adversely affects their response to our arguments about the need for regulation of political advertising.

I’m therefore indebted to the Labour Party for publishing their own fundamentally misleading ad this week, attacking Rishi Sunak for being soft on paedophiles. Why? Because it makes the case for bringing political advertising back into the remit of the Advertising Standards Authority. Having taken back control of our money, our borders and our laws thanks to Brexit, let’s get the ASA to take back control of political advertising. After all, the ASA did regulate political ads in non-broadcast media for many years. Then in 1997 the furore around the ridiculous Tory Party ‘demon eyes’ ad attacking Tony Blair tested the ASA's regulation of political advertising to destruction.

There are many very good arguments why the ASA should not regulate political advertising. And these were cogently rehearsed by the ASA in this post on their website in 2020, titled ‘We think political advertising should be regulated.” Sub-text: “Just not by us.” It’s safe to assume that the ASA’s reaction to the latest controversy about Labour's attack ad has been, “Thank god we don’t have to adjudicate on that one!” And who could blame them?

But the problem is that while various committees of the great and the good have been busily wailing and gnashing their teeth about who should regulate political advertising, our political parties have continued to advertise in a regulatory vacuum, particularly in social media. Another post on the ASA’s website explains that this political football has taken up permanent residence in the long grass for nearly 25 years:

“In 1998, the ASA referred the matter to the Neill Committee on Standards in Public Life. The Neill Committee recommended that political parties should establish a code of best practice in partnership with the advertising industry. The report was presented to Parliament in July 1999.”

At the time, i.e. at the end of the last millennium, the consensus seemed to be that the Electoral Commission could not risk compromising its independence by adjudicating on political advertising. So if the ASA wasn’t going to do it, and the Electoral Commission weren't going to do it, then a Code of Best Practice would have to do. Unfortunately, after nearly a quarter of a century, no such code of practice has been created. It’s almost as if our political leaders don’t want to make a commitment to not telling lies in their advertising.

This has resulted in a race to the bottom, first with Boris and his misleading advertising about Brexit on the side of the bus, and now with the latest Labour Party ads attacking Rishi Sunak.

There is no need to repeat the case against Boris’s claims, which was clearly condemned at the time by the head of the Office of National Statistics. But what about Labour's new ad on Twitter? Are their claims misleading?

The Twitter ad is designed to look like it has been published by Rishi Sunak and the Conservative Party. It features a posed portrait of Mr Sunak and a facsimile of his signature (spot the copyright infringement). There is a tiny disclaimer at the bottom of the ad which says, ‘Published by the Labour Party’, but as we all know, a disclaimer cannot correct an overwhelmingly misleading impression created by an ad. However, what saves the ad from being misleading in its presentation is the use of the frame when the ad is seen on Twitter, which is headed with The Labour Party’s name, logo and twitter handle. So far, so good. (Apologies that the frame is not part of the image attached to this post.)

The problem comes with the copy. The headline states “Do you think adults convicted of sexually assaulting children should go to prison? Rishi Sunak doesn’t.”  The body copy goes on to say “Under the Tories, 4,500 adults convicted of sexually assaulting children under 16 served no prison time. Labour will lock up dangerous child abusers.” The ad then cites its source for this data: “Based on Ministry of Justice data”.

And there’s the rub. The MoJ data covers the period of the Conservative Government’s entire time in office since 2010, but Rishi Sunak didn’t become an MP until 2015 and he didn’t become PM until 2022. So, is the ad misleading?

Without getting into the political wisdom or legitimacy of this advertising strategy, I have tried to imagine what advice I would have given if someone had asked me to clear this ad, and it’s this: You can’t substantiate a claim that Rishi Sunak doesn’t think paedophiles should go to prison, and cite data to support that claim, when Sunak wasn’t even an MP for almost half of the period covered by that data.

Of course, this latest spat is the just the tip of the iceberg, and the Conservative and Labour parties are both at fault, as this 2023 report from Full Fact makes clear. One of the recommendations from Full Fact is that “political parties should accept the need for accountability and move to independent oversight of their advertising practices.”

Winston Churchill famously said that: “democracy is the worst form of government, except for all the others that have been tried.” And the ASA is the worst regulator of political advertising, except for all the others that have been tried. But none have!

One quick and simple solution to this problem would be for ASA to take back control of political advertising, as they did before 1998, but with one change. Now the UK's ASA should follow the example of the ASA New Zealand so that the only part of the CAP Code that would apply to political advertising would be Rule 3 – Misleading Advertising. This would leave the political parties free to publish ads along the lines of demon eyes, but ads which made claims that are capable of objective substantiation would have to be substantiated and not be misleading. The only sanction would be adverse publicity, not a fine, and there would be no requirement for pre-vetting. Having had no regulation for nearly 25 years, this would be a quick and simple option, merely reverting to an adapted form of the previous regulatory system. However, recognising the challenges of this solution, I would also suggest that this arrangement should be "grandfathered" for a period of 5 years. Implement it now to get us through the next General Election, and then mid-way through the term of the next government we can reconsider whether to extend it for a further 5 years, or replace it with another solution.

It might not be ideal, but as Churchill said of democracy, it's the least bad form of regulation of political advertising. And its certainly better than nothing....