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Elections Act 2022

Contents

Part 6: Information to be included with Electronic Material

Definitions

Section 39: Definitions relating to electronic material and publication

  1. Subsections (1) to (5) set out definitions for ‘electronic material’, ‘promoter’ and ‘publish’ that are relevant to Part 6. Subsection (6) provides that the Secretary of State may make regulations to modify these definitions.

Section 40: Definitions relating to parties etc

  1. Section 40 defines the political entities that are referenced throughout this Part and are relevant to the requirements to include an imprint on paid-for and other electronic material:
    1. Registered party
    2. Recognised third party
    3. Candidate
    4. Future candidate
    5. Elected office-holder
    6. Referendum campaigner
    7. Recall petition campaigner
    8. Recall petition
  2. Subsection (5) defines ‘future candidate’, which means a person who is a future candidate at an election for a relevant elective office or a relevant Scottish elective office, as defined in section 32(3). This category is intended to avoid any potential ambiguity in relation to when an imprint is required which could arise from candidates only being legally recognised for a limited pre-election period, despite the fact they may have been campaigning long before then.
  3. Subsection (9) defines recall petition as having the same meaning as in the Recall of MPs Act 2015.
  4. Subsection (10) clarifies that references to candidate, future candidate or elected office-holders in this part of the Act include a candidate or future candidate at, or a person elected at, a municipal election in the City of London. In other words, all City of London elections so defined will be subject to the digital imprint regime.

Requirements

Section 41: Requirement to include information with electronic material

  1. Section 41 introduces requirements for promoters and any person on behalf of whom the material is being published (who is not the promoter) to include a legible or audible and directly accessible (where not included in the material itself) imprint on electronic material within the scope of the regime. The section is subject to sections 46 and 47 (subsection (8)).
  2. Subsection (2) requires 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 (3) 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).
  3. Subsection (4) makes provisions for 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 the regime.
  4. Subsections (5) to (7) set out further imprint requirements, for example that the imprint is legible or audible and retained as part of the material when republished. There are exceptions to the part, which are set out in section 47.

Section 42: Electronic material to which section 41 applies: paid-for material

  1. This section sets out the conditions required for material to be in scope of the regime in relation to "paid-for" material. The first condition is that the sole or primary purpose that the electronic material can reasonably be regarded as intended to achieve is a purpose within section 43. The second condition is that the promoter of the material, or the person on behalf of whom the material is published, has paid for the material to be published as an advertisement. This is not intended to include payments to create electronic material. Subsection (5) provides that where material is published on a website or mobile application, payments and costs associated with setting up, operating or maintaining the website or mobile application would not, in and of themselves, be considered payments ‘to publish as an advertisement' for the purposes of the second condition.
  2. Subsection (4) provides that the reference to paying for the material to be published includes providing any other form of consideration in return for the publication of the material. This would therefore include the provision of a benefit in kind in return for the publication of the material. This is not intended to include any cost involved in the creation of the material.

Section 43: Purposes referred to in section 42

  1. Section 43 sets out the purposes, referred to in section 42, for paid-for electronic material. Subsection (2) outlines the first purpose which is influencing the public to support or withhold support from: a) a registered party; b) registered parties who advocate (or do not advocate) particular policies or otherwise fall within a particular category of parties; and c) candidates or future candidates, in their capacity as such, who hold (or do not hold) particular opinions or otherwise come within a particular category of candidates or future candidates. Subsections (2)(b) and (c) relate to paid-for material that is about more than one candidate, future candidate or registered party who otherwise fall within a particular ‘category’ (e.g., ‘category of candidates’). For example, this could be material that asks the public to vote for candidates who support policies aimed at tackling climate change or cutting taxes, regardless of their party affiliation. This material is sometimes referred to in guidance from the Electoral Commission as material about ‘categories of candidates’ or parties.
  2. Material that is about more than one candidate or future candidate in subsection (2)(c) is generally enforced by the Electoral Commission (section 50)(2)(a)(i)), whilst material about a particular candidate or future candidate (in subsection(4)) is enforced by the police. Material that is about one or more than one registered party in subsections (2)(a) and (b) is enforced by the Electoral Commission. This enables the Commission in practice to enforce material about registered parties and referendums, as well as material about categories of candidates, future candidates and holders of elected office. This is broadly in line with the existing split of responsibilities between the enforcement authorities in the print regime. There may be a degree of overlap between material about categories of candidates, future candidates and holders of elected office and material that is about more than one particular candidate, future candidate or holder of elected office. In these instances, it is for the authorities to establish, based on the particular facts, where the enforcement responsibility lies.
  3. Subsections (4) and (6) provide for the second and third purposes which are to influence the public to support (or withhold support from) a particular candidate, particular future candidate or an elected office-holder, in their capacity as such. This is material about singular candidates, singular future candidates and singular elected office-holders that fall to be enforced by the police.
  4. Subsection (7) provides that the fourth purpose is to influence the public to support (or withhold support from) elected office holders, in their capacity as such, who hold (or do not hold) particular opinions or who advocate (or do not advocate) particular policies or who otherwise fall within a particular category of elected office-holders. Similarly, to subsections (2)(b) and (c), this includes material about more than one elected office holder who otherwise fall within a ‘category’ (‘category of elected office-holders’). For instance, this could be material about Members of Parliament who voted for or against a particular issue. This material will generally be enforced by the Electoral Commission (section 50 (2)(a)(ii)).
  5. Subsection (9) provides that the fifth purpose is to influence the public to support (or withhold support from) the holding of a referendum in the UK or any area in the UK or a particular outcome of such a referendum.
  6. Subsection (3), subsection (5) and subsection (8) provide that the material does not need to expressly mention the name of any party, candidate, future candidate or elected office-holder to achieve any of the purposes set out in this section. Subsection (10) provides that the material does not need to expressly mention a particular outcome of a referendum to achieve the purpose set out in subsection (9)(b). It is likely that all material under subsection (9)(a) would by default expressly mention the holding of a referendum in the United Kingdom or any area in the United Kingdom.
  7. References to ‘in their capacity as such’ in subsections (2)(c), (4), (6), and (7), make clear that only paid-for electronic material that seeks to give support to, or withhold support from, candidates, future candidates, or elected office-holders, in their capacity as such, are in scope of the provisions. It is intended that paid-for material supporting such individuals in a personal capacity is not captured by the provisions.

Section 44: Electronic material to which section 41 applies: other electronic material

  1. Section 44 outlines the conditions where an imprint is required for other electronic material. The first condition is that the material can reasonably be regarded to achieve any purpose within section 45 or it wholly or mainly relates to a referendum to which Part 7 of PPERA applies and is published during the referendum period for that particular referendum. This requirement is narrower than the one that applies to paid-for electronic material in respect of the holding of a referendum or particular outcome in a referendum as it only applies to material published during a referendum period and as defined by Part 7 of PPERA. The second condition is that the promoter of the material or the person on behalf of whom it is published is a registered party, a recognised third party, a candidate or future candidate, an elected office holder, a referendum campaigner or a recall petition campaigner. The third condition is that neither the promoter of the material, nor the person on behalf of whom the material is published, has paid for the material to be published as an advertisement.

Section 45: Purposes referred to in section 44

  1. Section 45 sets out the purposes referred to in section 44. The first purpose in subsection (2) is promoting or procuring electoral success at one or more particular relevant elections in relation to: a) a registered party, b) registered parties who advocate (or do not advocate) particular policies or otherwise fall within a particular category of parties; or c) candidates or future candidates who hold (or do not hold) particular opinions or otherwise come within a particular category of candidates or future candidates. As with paid-for material, subsections (b) and (c) relate to material about one or more registered parties, candidates or future candidates who otherwise fall within a category (e.g., a ‘category of candidates’). For instance, this could include material promoted by a recognised third-party campaigner which encourages the public to vote for candidates who support a particular policy with regards to climate change.
  2. As with paid-for material, the material does not need to expressly mention the name of any party, candidate or future candidate to achieve this purpose (subsection (4)).
  3. Subsection (3) provides that prejudicing the electoral prospects of other parties, candidates or future candidates also requires an imprint. This includes material prejudicing the electoral prospects of candidates or future candidates on a party list.
  4. Subsection (5) provides the second purpose which is promoting or procuring the election of a particular candidate or future candidate at one or more particular elections.
  5. Subsection (6) provides that the material does not need to expressly mention the name of any candidate or future candidate, to be in scope of the regime.
  6. Subsection (7) provides the third purpose which is promoting or procuring the success or failure of a recall petition. The material does not need to expressly mention the name of the member of the House of Commons to whom the petition relates (subsection (8)).
  7. The regime in respect of other electronic material is focussed on particular elections (and recall petitions (subsection (7)) and referendums as per section 44(2)(b)). Subsection (9) defines the ‘relevant elections’ for the purposes of this section, which includes elections for mayors in England and Wales.

Section 46: Electronic material relating to more than one candidate or future candidate

  1. This section sets out 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).

Section 47: Exceptions to section 41

  1. Section 47 sets out a number of exceptions to the regime. Subsection (1), provides that generally, the re-publishing or ‘re-sharing’ of paid-for or other electronic material will not require a new imprint, where the original (section 41 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. The exception applies regardless of whether the material is re-published by the original promoter, or by another person. An imprint is required if material which had not previously required an imprint is then republished such that it is captured by section 41 (for example the promoter or the person on behalf of whom it is published is on the list of political entities in section 44(3) meeting the second condition and the material also meets the first condition (section 44(2))).
  2. Section 47(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 unless the material consists of an advertisement.
  3. Subsection (4) defines ‘mobile application’ for the purposes of subsection (3).
  4. Under subsection (5), there are also exceptions for party political broadcasts or referendum campaign broadcasts as such broadcasts are already subject to regulation outside of the digital imprints regime.
  5. Subsection (6) defines broadcaster and referendum campaign broadcast for the purposes of subsection (5).
  6. Subsection (7) makes provision to amend the section, by way of regulations, to add, modify or remove cases to which an imprint is not required.

Section 48: Offence of breaching section 41

  1. Section 48 sets out the offences, defences and penalties under the regime. Subsection (1) provides that where electronic material is published without an imprint (in contravention of the requirements in section 41), 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).
  2. 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.
  3. Subsection (8) makes the section subject to Schedule 11 which provides for candidates and their election agents to be guilty of an illegal practice rather than guilty of an offence under this section.
  4. Subsection (9) cross refers to section 49 which provides for the removal of electronic material post conviction of an offence under this section.

Section 49: Order to take down electronic material in breach of section 41

  1. Subsections (1) to (6) provide for the removal of the electronic material following a conviction for an imprint offence. Subsection (2) provides that a court may order ‘a person by whom the electronic material is published’ (for example, the digital platforms hosting the content even if they are not the promoter) to remove the material or disable access to the material.
  2. Subsection (4) makes it a criminal offence for any person (for example digital platforms) who receives an order to take down electronic material and fails to comply with it without a reasonable excuse. The penalties are set out in subsection (5). Subsection (3) sets out the right of appeal for a person to such an Order.
  3. Under subsection (6) a court must notify the Electoral Commission of a person’s conviction for an offence under subsection (4) and the sentence imposed as soon as practicable.

Section 50: Enforcement by the Commission

  1. Section 50 makes provision for the Electoral Commission to impose civil sanctions (this does not prevent appropriate cases being referred to or investigated by the police) by applying 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 certain offences. Those offences are set out in subsection (2). The Commission’s enforcement powers for paid-for electronic material are limited to offences related to registered parties and categories of registered parties, candidates and future candidates (subsection (2)(a)(i)), categories of elected office holders (subsection (2)(a)(ii)) and referendums (subsection (2)(a)(iii)). All other offences relating to paid-for electronic material fall to be enforced by the police and the courts.
  2. The Commission’s enforcement powers for unpaid other electronic material are limited to referendums (subsection(2)(b)(i)), registered parties and categories of registered parties, candidates or future candidates (subsection(2)(b)(ii)). The police and the courts are responsible for the enforcement of all other offences relating to other electronic material.

Section 51: Notice to take down electronic material in breach of section 41

  1. Subsections (1) to (6) make provision for the Electoral Commission to issue a notice to take down the material or disable access to the material to ‘a person by whom the electronic material is published’.
  2. The penalties are outlined in subsection (4). There is no alternative civil sanction available for the failure to comply with such a notice.
  3. Under subsection (5) a court must notify the Electoral Commission of any person convicted for an offence under subsection (3) and any sentence imposed, as soon as practicable.
  4. Subsection (6) cross refers to section 52 which provides for the requirements to be included in the notice.

Section 52: Further provision about notice under section 51

  1. Subsections (1) to (6) set out the requirements for the Electoral Commission to issue a notice to take down material under section 51. Subsections (4) and (6) outline the information that is required in the notice.
  2. Subsections (8) to (10) outline the process of appeal in relation to a notice to take down information from the date it is given.

Section 53: Supply of information

  1. Section 53(1) introduces Schedule 12 making provision about the supply of information for the purposes of this Part.
  2. Section 53(2) makes provision for paragraphs 3 to 13 and 15 of Schedule 19B to PPERA (i.e., the Electoral Commission’s investigatory powers) to be available to the Electoral Commission for section 50(2)(a) and (b) offences.
  3. Schedule 12 places a general duty on any person, (which includes organisations such as social media companies) to share information with the relevant enforcer (either the Electoral Commission or police) when requested for the enforcement of digital imprints only. This is to assist the Electoral Commission and the police’s ability to enforce the digital imprints regime by providing specified information to determine whether material is in scope of the regime or not. An information or electronic material disclosure order may be sought from a court where the requested information is not supplied.

Supplementary

Section 54: Guidance

  1. Section 54 makes provisions for statutory guidance which, as outlined in subsection (1), must contain details on the operation and enforcement of the regime.
  2. Subsection (2) requires the authorities to have regard to the guidance in the exercise of their functions. The guidance will be addressed to both campaigners and the enforcement authorities.
  3. Under subsection (3) the Electoral Commission must draft the guidance and the guidance must then be approved by the Secretary of State. Under subsection (4) the Secretary of State is able to modify the guidance before approving it, however under subsection (6), any draft guidance containing amendments must be accompanied by a statement outlining the reason for those amendments.
  4. Subsections (5) to (9) outline the process for laying the guidance, which includes a 40 day period in which Parliament can resolve not to approve the guidance. The parliamentary procedure for the guidance is the equivalent to the negative statutory instrument parliamentary procedure. The subsequent order bringing the guidance into force is not subject to any parliamentary procedure.
  5. Under subsection (10) the Commission is able to revise the guidance from time to time and must do so if directed to do so by the Secretary of State.

Section 55: Information in Commission’s annual report

  1. Section 55 relates to the Electoral Commission’s reporting requirements under paragraph 20 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, orders to take down electronic material (including those made by 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)).

Section 56: Notices

  1. This section provides details on how a notice issued by the Electoral Commission or the police may be given, including electronically (subsection (1)); to whom within a body corporate, a partnership or an unincorporated association it may be given (subsections (2) to (4)) and where it should be addressed (subsections (5) to (6)).
  2. Under subsection (7), a notice sent to a person by electronic means is to be treated as having been given on the working day immediately following the day on which it was sent. Subsection (8) provides for definitions of an officer and working day for the purposes of the section.

Section 57: Proceedings for an offence under this Part

  1. Section 57 provides for the time limit for prosecutions for offences within section 50(2)(a) or (b) (offences in relation to which the Commission may exercise enforcement functions), and offences under section 49(4) or 51(3) (order or notice to take down electronic material in breach of section 41). This section reflects the existing position of the differences in time for prosecutions for offences related to the subject matter of registered parties and referendums (subsections (3) to (7)) and those with the subject matter of elected office holders and candidates (and now also future candidates) (subsections (9) to (15)).

Section 58: Offences committed by bodies corporate

  1. This section replicates section 152 of PPERA and is concerned with offences committed by corporate bodies.

Section 59: Offences committed by unincorporated associations etc

  1. Section 59 makes provision for an unincorporated association to also be guilty of an offence and liable for prosecution. The section replicates section 153 of PPERA.

Section 60: Regulations under this Part

  1. Under section 60, the Government is only able to make regulations under the powers in Part 6 of the Act following a recommendation from the Electoral Commission or consultation with the Electoral Commission, except for regulations under section 54(9)(c) (which bring guidance into force).

Section 61: Meaning of "the Commission"

  1. Under section 61, references to "the Commission" throughout the Part mean the Electoral Commission.

Schedule 11: Illegal Practices

  1. Schedule 11 provides for the offence under section 48(1) (which relates to breaching the requirement for an imprint in section 41) to be treated as an illegal practice for the purposes of electoral law in the circumstances set out in the Schedule.
  2. The effect of Schedule 11 is that a person (a candidate or their election agent) who is guilty of an illegal practice will be convicted under the relevant provision applied by Schedule 11 rather than under section 48(1). Provisions about illegal practices do not apply to any case to which the civil sanctions under Schedule 19C to PPERA apply and vice versa.
  3. Under paragraph 1, a candidate or election agent at elections to a Parliamentary election, an election to the Northern Ireland Assembly, a local government election (as defined in section 191 or 203 of RPA 1983), an election under Part 1A and Part 2 of the Local Government Act 2000 for the return of an elected mayor or an election for the return of a mayor of a combined authority in England and Wales, may be guilty of an illegal practice if they promote electronic material without an imprint.
  4. Under paragraph 2, a candidate or election agent at elections to the Scottish Parliament, may be guilty of an illegal practice if they promote electronic material without an imprint.
  5. Under paragraph 3, a constituency or individual candidate (or election agent of such a candidate) or a party list candidate (or election agent of registered party in relation to that party’s list) at elections to Senedd Cymru, may be guilty of an illegal practice if they promote electronic material without an imprint.
  6. Under paragraph 4, a candidate or election agent at local elections in Scotland, may be guilty of an illegal practice if they promote electronic material without an imprint.
  7. Under paragraph 5, a candidate or election agent at local election in Northern Ireland, may be guilty of an illegal practice if they promote electronic material without an imprint.
  8. Under paragraph 6, a candidate (or the candidate's election agent) at a police and crime commissioner election may be guilty of an illegal practice, if they promote electronic material without an imprint
  9. Under paragraph 7, an MP within the meaning of the Recall of MPs Act 2015 may be guilty of an illegal practice if they promote electronic material without an imprint.

Schedule 12: Supply of information etc

  1. Schedule 12 requires any person to comply with a notice for the supply of information to enable the Electoral Commission or the police to determine whether electronic material has been published in contravention of the electronic imprint regime (paragraph 1(b)).
  2. As outlined in paragraph 1 of the Schedule, 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).
  3. Paragraph 1(2) enables the police or EC to obtain a copy of any electronic material identified in the notice.
  4. The person in receipt of the notice is under a general duty to comply with the notice within the time period set out within it (paragraph 1(3)).
  5. The Electoral Commission or police can seek a court order for the requested information (paragraph 2) or a copy of the electronic material (paragraph 3) if the person fails to comply with their request for information. Paragraphs 2 and 3 enable the relevant courts to issue an information or electronic material disclosure order.
  6. Under paragraph 5 of the Schedule, any authorisation of a person by the Electoral Commission or police must be in writing. This may be sent by post or electronically to the person (section 56).
  7. Paragraph 7 of the Schedule outlines the admissibility of information provided by a person in compliance with the requirements of the Schedule.
  8. The Schedule applies restrictions on the disclosure of information. A person is not required to provide legally professionally privileged information (paragraph 6) or disclose information which would contravene data protection legislation, although the duty imposed by this Schedule is to be taken into account in determining whether the disclosure would do so (paragraph 8(2)).
  9. The Electoral Commission must report any notices given under paragraph 1 of the Schedule (section 55(1)(d)) and any orders (under paragraphs 2 and 3) that were made or applied for (see section 55(1)(b) and (c)). It must also report convictions reported to it by the courts (see section 55(1)(b)).
  10. Paragraph 9 to the Schedule defines a relevant enforcer as the Electoral Commission or a police constable.

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