The UK government has set out a plan to give media regulator Ofcom more powers to regulate internet companies. The talk is about forcing platforms to hold a ‘duty of care’ for their users. We don’t yet know many of the details, and the term online harms covers a vast swathe of activities from child protection to terrorism, but we also know that the government has previously viewed interference with elections as one of the online harms that needs addressing.

So what is an online harm when it comes to electoral integrity and how could internet companies police such threats?

The first is interference with the electoral process itself. In this case, the UK’s adherence to paper and pencil voting and counts taking place in a single venue for each constituency actually helps. If we used electronic voting machines, or voted via the internet, then these might be open to manipulation. The only instance where the process is open to such manipulation is when scanning is used to count the votes in elections such as the mayor of London. So there needs to be confidence that the scanners and their software is secure and accurate and consideration needs to be given to having at least a sample of the paper ballots hand counted by hand.

The next key area is disinformation (or fake news). Should platforms like Facebook ensure that such posts are not altering the course of the election? 

To date the government has been keen to stress that it should be up to voters to decide for themselves what is truthful and what is not when it comes to electoral propoganda. Political adverts are exempt from the ‘legal, decent and honest’ requirements of, say, washing powder adverts. So politicians can say whatever they want on social media or their own websites. (Of course, the government could change their minds and require truthfulness, but this would mean establishing some sort of board to decide on truthfulness and a whole host of other issues.)

Just because the government doesn’t require it doesn’t stop the platforms having their own rules governing political speech. Facebook is the most open, allowing politicians to do and say what they want. They exempt political adverts from fact-checking and have said they are in favour of free speech and allowing voters to decide what is true or not. At the other end of the scale, Twitter has banned political adverts but still allows politicians to say whatever they want in organic tweets. And in the middle comes Google which has restricted the targeting allowed for adverts, but still allows things such as a banner advert which directed users to a site called labourmanifesto.co.uk – which turned out to be a Conservative party advert.

Platform policies are pretty much worldwide. So the UK government’s new initiative will throw down a gauntlet in the shape of a challenge to create UK service conditions reflective purely of UK laws. That has happened in other countries, but the platforms (and US government) have complained bitterly. Such laws have yet to be fully tested in the courts so we wait to see how the platforms will react.

Where the UK government may choose to act would be in the areas of user identification and financial probity. Electoral participation in the UK is limited to UK individuals and companies, and there are limits to the amount that can be spent. So it may be that the government chooses to impose new burdens on internet companies to ensure that only legal contributions can be made and that those responsible for adverts are clearly identifiable. This would take the form of clear ‘imprints’ and an open library to see who has produced what and at what cost.

Finally there is the issue of foreign interference. With participation limited to UK individuals and companies, what action might be proposed to prevent interference from those based overseas – either to seek to advantage a particular candidate or just to create disinformation and confusion?

To this end, crossbench peer Lord Cromwell (*) has tabled a question in the House of Lords:

To ask Her Majesty’s Government, given the “real danger that hostile actors use online disinformation to undermine” the UK’s “democratic values and principles” outlined in their Online Harms White Paper, published in April 2019, what steps they plan to take to empower the proposed independent regulator to require online platforms to take down such material that may be perceived to have an impact on an electoral contest; and what guidance they plan to give to that regulator about how any such decision should be reached.

Of course the government may think election interference should be the responsibility of another body, not Ofcom. Or they may think that there should be no regulation or protection in this area – although that would contradict their main decision and they would have to explain why. We await the further details.

* Disclosure – Lord Cromwell manages many UK observer secondments to OSCE/ODIHR international election observation missions on behalf of the UK Foreign and Commonwealth Office and has employed me in this role.