Electronic material: conditions for application
Section 50 – Electronic material: conditions for application of section 52
159.This section sets out 3 conditions for when the digital imprint requirements will apply. These conditions are that:
The material can reasonably be regarded to achieve either of the 2 purposes within the subsequent section (i.e. (i) procuring electoral success at a relevant Scottish election for registered parties or more than one candidate or future candidate or (ii) the election of a particular candidate or future candidate).
The promoter of the material is a relevant third party or the person on whose behalf it is published is a relevant third party.
Neither the promoter of the material nor the person on whose behalf the material is published has paid for the material to be published as an advertisement.
160.The first condition is further elaborated on in section 51. The second condition provides that material can be promoted by the relevant third party or published on their behalf. Where it is published on their behalf, section 52(2) will require their contact details to be included despite the relevant third party not being the actual promoter. The third condition restricts the coverage of this to unpaid-for material, with paid-for material and some other unpaid-for material published by persons other than relevant third parties already regulated by the regime in Part 6 of the Elections Act 2022.
Section 51 – Purpose of the electronic material
161.This section sets out the 2 purposes mentioned in the first condition in section 50. The first purpose is promoting or procuring electoral success at one or more particular Scottish elections in relation to a registered party, registered parties who advocate for or against particular policies or otherwise fall within a particular category of parties and candidates or future candidates with particular opinions or otherwise come within a particular category.
162.The references here to parties who promote policies and to candidates in categories is consistent with the tests in Part 6 of the Elections Act 2022 for its regulation of paid-for and certain unpaid-for electronic material. The intention is to capture more general material, for example material promoted by a relevant third party persuading the public to vote for candidates with a particular position on the constitution, climate, taxes, etc. The material might prejudice rather than promote the electoral prospects of other parties, candidates or future candidates. It need not expressly mention the name of any party, candidate or future candidate to achieve this purpose.
163.The second purpose is in subsection (4): promoting or procuring the election of a particular candidate or future candidate at one or more Scottish elections. It need not expressly mention the name of any candidate or future candidate, to be in scope of the regime.
164.Subsections (5)(b) and (6) clarify that where electronic material may be reasonably regarded as promoting or procuring the electoral success of two or more candidates standing in the name of a party or included in a list of candidates submitted by the party then it may be regarded as being published on behalf of the registered party (rather than on behalf of a candidate).
165.The split of the 2 purposes between success of parties or groups on the one hand and individual candidates on the other facilitates continuation of the existing enforcement regime. Material in the former category is generally enforced by the Electoral Commission and material about an individual candidate is generally enforced by the police in the first instance. The existing split of responsibilities between the enforcement authorities is found in the print regime, Part 6 of the Elections Act 2022 and the to-be-revoked the Scottish Elections (Details to appear on Election Material) Regulations (S.S.I. 2020/297) and the Scottish Elections (Details to appear on Election Publications) Regulations (S.S.I. 2020/298). Where there is overlap, it would be for the authorities to establish, based on the particular facts, where the enforcement responsibility lies.
