In the wake of the allegations levelled against Cambridge Analytica (CA) and its UK affiliate SCL Elections Limited (SCL) about their role in influencing elections worldwide (including links with the Brexit referendum and election of Donald Trump in the US), we briefly look at the adequacy of the current UK legal regime and powers of the Electoral Commission to deal with the threat to democracy posed by the rise in the use of “psychological warfare” tools by political parties in election campaigns.

Over a year in the making, the story has gathered incredible pace since initial publication of journalist Carole Cadwalladr’s investigations through the Observer and Guardian newspapers late last week. Triggered by the whistleblowing of Chris Wylie, a former employee of CA and key figure in the creation of the tool, the story initially revolved around claims that over 50 million Facebook profiles had been harvested and sold without consent in order for CA to produce a system that could profile US voters to target and influence them through personalised political advertisements. Since then, further revelations have surfaced linking CA with the alleged commission of bribery offences, entrapment and the use of fake documents and ID to secretly assist with elections throughout the world. The fallout has already been spectacular, including investigations started by data protection authorities on both sides of the Atlantic, Facebook’s shares dropping over 9% in the last two days, the suspension of CA’s CEO Alexander Nix, calls from a parliamentary committee for Facebook CEO Mark Zuckerberg to give evidence (along with the recall of Alexander Nix), and a #DeleteFacebook movement on Twitter.

With the looming deadline for compliance with the EU’s General Data Protection Regulation, this is an obvious and timely reminder of the inherent tension between how individuals protect their personal data whilst maintaining their online presence and the desire and ability of companies to exploit the same for commercial gain. Yet, the issue goes much further than this. Claims pertaining to the use of social media harvesting aside, it is clear that data analytics and targeted advertising have been used for some time in elections by organisations operating in a very grey area. Almost a year ago in May 2017, Carole Cadwalladr wrote an article titled ‘The great British Brexit robbery: how our democracy was hijacked’ outlining the alleged role of CA and another web analytics company, AggregateIQ, in the Brexit referendum on behalf of Vote Leave and Leave.eu. This detailed the vast sums of declared campaign funds for the various Leave campaigns spent on work performed by such companies, as well as speculating as to the scale of influence through undeclared funding. Whistleblower Chris Wylie has described such methods as akin to the “psychological operations” used by the military and secret services to effect mass sentiment change. These technologies pose serious questions as to how to regulate campaign spending and election communications to maintain a level playing field.

Even a brief review of UK election law and enforcement bodies reveals how inadequate the current regime is to monitor and regulate such activity. One of the most patent issues with the legal regime in the UK is the age and diffuse nature of the legislation, being spread across some 17 statutes and 30 sets of regulations sourced largely from the Representation of the People Act 1983. It is clear these laws are simply not equipped to deal with sophisticated modern campaigning methods in the digital age. An LSE publication from March 2017 titled ‘The new political campaigning’ called for an urgent and independent review of “weak and helpless” UK electoral laws, and warns that such technology has disrupted British politics to the extent that current laws are insufficient to control the influence of big money in politics.

In February 2016 the three Law Commissions for the UK published their interim report, finding that UK electoral law is “complex and fragmented”, “difficult to access, apply, and update” and with much of the law “rooted in 19th century language and practice …[it] doesn’t reflect modern electoral administration”. Their key recommendations included changing the process for challenging elections to make it easier for parties to understand and to limit costs, and modernising and strengthening electoral offences and sentences. In particular:

  • Undue influence – The Law Commissions recommend this should be restated as offences of “intimidation, deception and improper pressure”, with “improper pressure” to include the commission of an illegal act which the reasonable person would regard as improperly infringing the free exercise of the franchise. Whilst this would undoubtedly broaden the actions covered by the undue influence offence, it is still questionable whether this would cover the alleged actions of CA and similar organisations. Given the newspaper reports identify a web of front companies and / or subcontractors through which such organisations operate, a further potential issue would be the ability of the enforcement bodies to identify and trace such actions back to the underlying and controlling entity.
  • Imprinting – The Law Commissions recommended the expansion of the “imprint” requirement, ie the obligation to state the affiliated campaign on any political communication, to encompass online campaign material which “may reasonably be regarded as intending to procure or promote any particular result”. The Law Commissions also mooted the possibility of separate regulation of online materials used in the election. Again, whilst this would be a very welcome improvement, it would still be subject to being able to capture the indirect nature of the alleged activities of CA.
  • Sentences – The Law Commissions recommended making the maximum sentence of 10 years’ custody available in cases of serious electoral fraud as an alternative to the common law offence of conspiracy to defraud, a route which is currently forced to be sought by prosecutors due to the limited maximum of two years’ custody under electoral offences as they stand. This would be a welcome addition to sentencing powers. However, individual punishments have the potential to mask wider issues with the activities conducted by such organisations.

Of course, any legal regime is only effective if used and applied in an appropriate manner by the bodies with the power to enable enforcement, namely: the Electoral Commission, the Police and the Information Commissioner’s Office. The lack of action taken following several investigations arising from the Brexit referendum illustrates the lack of resources, expertise, powers and / or appetite these three bodies have to deal with such issues. An Electoral Commission investigation into the role CA played in Brexit in 2017 was dropped, with the Electoral Commission citing a lack of powers to investigate and enforce against foreign entities. This is a serious gap in the current regime and allows for the very serious potential manipulation of elections by way of interventions by foreign actors. Similarly, the Police / Crown Prosecution Service (CPS) abandoned their investigation into alleged breaches of electoral spending in last year’s general election by a number of Conservative MPs, stating they could not prove deliberate breach by the individuals in question. It is not just national elections that are beset by such issues, as illustrated by the 2015 London East End borough mayoral election of the now infamous Lutfur Rahman, dubbed by the Economist as “the badshah of Tower Hamlets”. Despite an election court ruling that Rahman had used corrupt and illegal practices - resulting in a removal from office, a ban from standing for election for five years and a £250,000 costs order – the police and CPS decided there was insufficient evidence to launch a criminal prosecution. Authors of the 2017 LSE publication advocate the need for new standards in this area and an expanded brief for the regulators. Perhaps, also, these three bodies need to consider how they can better work together to maximise their effectiveness.

The Government has said there is currently no parliamentary capacity for an electoral bill to take forward the recommendations set out in the Law Commissions’ 2016 report. On their website the Law Commissions state they “continue to work with the Government to look at other ways of implementing our reforms”. Perhaps, in light of the deep flaws in the regulation of our electoral system exposed by this scandal, the Government should listen to the rising calls to consider electoral reform a greater priority.