29th January 2025
145.Part 8 of the Act contains provisions promoting further transparency at Scottish elections. It requires certain unpaid-for electronic campaigning material for Scottish elections which is promoted by or published on behalf of “relevant third party” organisations to display an imprint with the name and address of the promoter and of any other person on behalf of whom the material is being published.
146.While the term “digital imprint” is not used in the Act or in the corresponding provisions in Part 6 of the Elections Act 2022 (see below), it is often used to mean required identification information added to digital campaigning material. Therefore, wherever that term is used in these Explanatory Notes or in other Accompanying Documents, it is an intended shorthand for the information required to be included with any electronic campaigning material to which legislative provisions apply.
147.Part 8 regulates any “relevant third party”, which means a body (not a candidate or another individual) involved in campaigning or influencing the election while not being a direct participant, such as a political party (hence “third party”). The “relevant” qualification recognises that there are other third parties involved in campaigning which are not covered by this Part. For example, “
148.Part 8 of the Act supplements the regime in Part 6 of the Elections Act 2022, which requires digital imprints to be included in a broad range of electronic material. Generally, the transparency requirements there require contact information to be included with paid-for electronic material which relates to registered political parties and candidates and also with other unpaid-for electronic material connected with elections. The application of the Election Act 2022 as regards unpaid-for material is limited to material which is promoted by or published on behalf of certain groups listed in section 44(3) of the Act, such as registered parties, candidates, office holders and recognised third parties.
149.Therefore the Elections Act 2022 does not extend to unpaid-for digital campaigning material for Scottish elections which is promoted by or published on behalf of third party campaign groups which are not recognised third parties. The supplementary provisions in Part 8 of the Act are intended to extend requirements to that group.
150.Digital imprint rules for Scottish elections are currently found in 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). Following the enactment of this Part it is intended that the coverage and requirements for Scottish elections will be in Part 8 of the Act and in Part 6 of the Elections Act 2022. The regulations are therefore revoked by section 61.
151.More generally, there remain requirements to include contact details in campaign material for Scottish elections for printed material which is not in an electronic or digital format. Section 143 of the Political Parties, Elections and Referendums Act 2000 (“
152.This section notes the coverage of Part 8 of the Act as applying to electronic material published in connection with a relevant Scottish election (defined in section 49 as Scottish Parliament and local government elections). It also notes the other legislation in relation to electronic material published in connection with these elections.
153.As noted, Part 8 of the Act supplements Part 6 of the Elections Act 2022, which requires the display of a digital imprint for other types of digital campaigning material published in connection with Scottish elections. Therefore subsection (2) is a signpost towards those provisions. The reference in that subsection to requirements in “any other enactment” recognises that there may also be legislative requirements set out elsewhere in the future.
154.This section defines key terms for the coverage of the Part: “electronic material”, “promoter”, “published” and “relevant third party”. “Electronic material” can be text, pictures, videos, audio or music. However, phone calls and text messages are explicitly excluded from this definition. In order to be published by the promoter, the electronic material needs to be transmitted to the public or any section of the public. This may be done via the internet or by other electronic means.
155.The definitions of “electronic material”, “promoter” and “published” are broadly consistent with those in section 39 of the Elections Act 2022, which defines those terms for the coverage of the complementary Part 6 of the Elections Act 2022. A “promoter” is the person causing the material to be published, but is not a person who does such publishing in the ordinary course of their business, (for example, internet providers or social media companies).
156.Section 39 of the Elections Act 2022 contains a power for the Secretary of State to modify the definitions of “electronic material”, “the promoter” or “publish”. Similarly, subsection (3) allows the Scottish Ministers to modify these key definitions by regulations.
157.The definition of “relevant third party” is also key in terms of the coverage of the Part. This defines the third party campaign groups to which, as noted above, digital imprint requirements in the Elections Act 2022 do not apply. The contact details of the promoter and of any other person on whose behalf the material is published are to be included when certain electronic material is promoted by a relevant third party or published on behalf of a relevant third party. The definition of relevant third party covers persons who undertake activities in relation to a Scottish election but with the explicit exclusion of individuals, recognised third parties and registered parties. This definition may also be modified by regulations made by the Scottish Ministers in terms of their power in this section.
158.This section defines other terms used in Part 8 of the Act to outline the boundaries of the transparency requirements in this Part: “candidate”, “future candidate”, “registered party”, “recognised third party”, “registered party”, “relevant Scottish election” and “relevant Scottish elective office”. As with its inclusion in Part 6 of the Elections Act 2022, “future candidate” is a person who is a future candidate at an election for a relevant Scottish elective office. This category is intended to avoid any potential ambiguity in relation to when imprints are required because candidates are only being legally recognised for a limited pre-election period, despite the fact they may have been campaigning before then.
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.
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.
166.This section has the principal (digital imprint) requirement for information about any relevant third party promoters and any person on behalf of whom the material is being published (who is not the promoter) to be included as part of the electronic material. It is to be legible or audible and directly accessible (where not included in the material itself) imprint on electronic material within the scope of the regime. It is a similar requirement to that in section 41 of the Elections Act 2022 in relation to the material covered there.
167.Subsection (1) requires these imprints to be displayed as part of the material or in a location that is directly accessible from the material only where that is not reasonably practicable. Subsection (2) provides that the imprint information required to be embedded within electronic material is the name and address of the promoter of the material and any person on behalf of whom the material is being published (and who is not the promoter).
168.As with the corresponding provisions in the Elections Act 2022, subsection (3) has regulation-making powers to modify the details to be included in the imprint, if required. This is to accommodate technological advances and any required changes as a result of the implementation of this or the corresponding regime under the Elections Act 2022.
169.Subsections (4) to (6) set out further imprint requirements, for example that the imprint is legible or audible and retained as part of the material when republished.
170.This section sets out a number of exceptions to the regime. Subsection (1) provides that generally, the re-publishing or ‘re-sharing’ of electronic material will not require a new imprint, where the original (section 52 compliant) imprint is retained in the material, and the material (the content or the imprint) has not been materially altered since it was previously published (for example, sharing, forwarding or re-posting an existing message on social media). The exception applies regardless of whether the material is re-published by the original promoter, or by another person.
171.Subsection (3) outlines exceptions for material published for journalistic purposes which is the publication of electronic material on a website or mobile application whose primary purpose is the publication of journalism. For example, campaigning material written as an article in a blog or an online newspaper would not require a digital imprint.
172.Subsection (5) makes provision to amend the section, by way of regulations, to add, modify or remove cases to which an imprint is not required.
173.Section 54 sets out the offence, defences and penalties applicable to the regime. Subsection (1) provides that where electronic material is published without an imprint (in contravention of the requirements in section 52), the relevant third party who is the promoter of the material and any person on behalf of whom the material is being published (if not the promoter) becomes liable for a criminal offence. The penalties are set out in subsection (2) and defences in subsections (3), (4) and (5).
174.Under subsection (7) a court must notify the Electoral Commission when a person is convicted of an offence under subsection (1) and the sentence imposed, as soon as is practicable.
175.Despite the general exclusion of liability for individuals acting as such there is still potential for an individual to commit an offence, where they are the controlling mind of an organisation. Section 55 makes provision for certain persons associated with different types of organisations to be held criminally liable for committing an offence under section 54, in addition to the organisation.
176.For that to happen, any person referred to in this section as a “
177.Section 56 and 47 enable enforcement by the Electoral Commission using investigatory powers and civil sanctions. As noted above, certain types of material are investigated by the Electoral Commission, although this does not prevent appropriate cases being referred to or investigated by the police.
178.Section 56 applies Parts 1 to 4 and 6 of Schedule 19C of PPERA and the Political Parties, Elections and Referendums (Civil Sanctions) Order 2010 (S.I. 2010/2860) in respect of offences described in subsection (2). The Commission’s enforcement powers are limited to material the purpose of which is procuring electoral success for registered parties and categories of registered parties, candidates or future candidates. The police and the courts are responsible for the enforcement of offences relating to electronic material promoting particular candidates or particular future candidates.
179.To supplement enforcement of the Act, this section provides investigatory powers to gather information. The powers are those set out in Schedule 12 of the Elections Act 2022 in relation to the requirements of Part 6 of that Act.
180.Schedule 12 requires any person to comply with a notice for the supply of information to enable the Electoral Commission or a police constable to determine whether electronic material has been published in contravention of the electronic imprint regime. The information required will be identified by the Electoral Commission or police in the notice and must be information that is reasonably required to determine whether electronic material has been published in contravention of the regime or to make contact with the promoter of the material or the person on behalf of whom the material has been published (and who is not the promoter). It ensures compliance with an order through the courts. The schedule also applies restrictions on the disclosure of information. A person is not required to provide legally professionally privileged information or disclose information which would contravene data protection legislation.
181.This section requires the Electoral Commission to issue statutory guidance. Under subsection (1) it must contain details on the operation and enforcement of the regime. In enforcing the regime the Electoral Commission are to have regard to the guidance. The guidance is also relevant as a defence under section 54(4).
182.The section also provides the procedure for creating the guidance. The Electoral Commission must draft the guidance for approval by the Scottish Ministers who are able to modify the draft before laying it before the Scottish Parliament. Any modified guidance must be accompanied by a statement outlining the reason for the amendments. Subsections (7) to (9) outline the process for laying the guidance, which includes a 40 day period in which the Parliament can resolve not to approve the guidance. Given this parliamentary procedure, the subsequent regulations bringing the guidance into force are not subject to any Parliamentary procedure.
183.This section adds to the Scottish reporting requirements of the Electoral Commission in paragraph 20A of schedule 1 of PPERA. Under subsections (1) and (2) the Electoral Commission’s annual report must include information about convictions (for offences relevant to this Part) reported to the Electoral Commission and the Electoral Commission’s use of its powers to request information under Schedule 12. The Commission is not required to provide any information which may be unlawful or adversely impact upon ongoing investigations or proceedings (subsection (3)).
184.Under this section, the Scottish Ministers are only able to make regulations under the powers Part 8 of the Act following a recommendation from the Electoral Commission or after consultation with the Electoral Commission, except for regulations under section 58(9)(b) (which bring guidance into force).
185.As digital imprint rules for Scottish elections will be in Part 8 of the Act and in Part 6 of the Elections Act 2022, this section revokes the regulations containing the earlier Scottish regime.