The EU Referendum vote on June 23 was a watershed moment for UK history, and the debate from both the Remainers and the Brexiteers, emotionally charged and delivered with, at times, unrestrained vehemence, has raised serious questions about the regulation of political advertising – and the legitimacy of the referendum’s outcome.
Alongside the deluge of in-fighting, resignations from the victorious Leave campaign and the exposure of some shallow campaign promises – arguably putting to bed any belief that the most vocal campaigners were in it for the long run – there has been a ground swell of public backlash. This is aimed primarily at how the two sides communicated their political messages to the broader public in the shape of their advertising. It has been reported that 45,000 people have signed a petition calling for political advertising to be regulated like any other advertising which is overseen by the Advertising Standards Authority (ASA).
As it currently stands, political advertisements are currently banned from being broadcast on TV under the Communications Act 2003. Political ads in non-broadcast media are, though, exempt from the Advertising Code. However, until 1999, non-broadcast political advertising was subject to some rules in the Advertising Code until, after the 1997 election, the Committee of Advertising Practice made a decision to exclude political advertising from the ASA’s remit.
Unfortunately, this situation looks set to continue as the ASA has neither the resources nor the expertise to act as the guardian of truthfulness in the democratic process.
However, given the level of scrutiny which arguably should be given to public decisions of such magnitude, it is worth considering for a moment how the Leave campaign’s claims would have fared if they were regulated like commercial marketing messages. The claim that £350 million per week would be available for investment in the NHS after Brexit stands out as a particularly noteworthy example.
In commercial parlance, the burden of proof is on the advertiser to prove that it can substantiate its claims and show that they are not misleading. So, if the £350 million claim had been investigated by the ASA, the Leave campaign would have had to substantiate it with reliable data. If the data showed that only a portion of that sum would be available, then the ASA would have concluded that it was unsubstantiated and exaggerated, and therefore misleading.
Any advertiser that wants to defend its claim can await the outcome of an adjudication by the ASA Council. In the meantime, it is fully entitled to keep running its claim unless and until the Council upholds the complaint. In this case, however, the Leave campaign backtracked almost as soon as the Referendum result was announced; both Iain Duncan Smith and Nigel Farage have sought to distance themselves from the claim since the result was announced.
Apart from seeking to enforce truth in advertising, the ASA’s other principal aim is to ensure social responsibility. If the ASA Council had been asked to consider whether Mr Farage’s poster showing the queue of migrants with the headline “Breaking Point” was socially responsible, it would have almost certainly condemned it for its egregious social irresponsibility.
As well as the self-regulatory system of control by the ASA, the legal system also has mechanisms to control misleading advertising. In recent years, consumer law has been strengthened, providing consumers the right to back out of a contract if they can show that they entered into it as a result of misleading marketing claims.
In this instance, it appears clear that key claims made by the Leave campaign, including the claims about both NHS funding and immigration control, were both misleading and unsubstantiated. If these had been claims to sell a product or service, the advertiser would face censure by the ASA and consumers would be able to withdraw from the resulting contractual commitments.
However these were political claims, not commercial ones. The victims of this scam were voters, not consumers. There are vital free speech considerations that mean that it may not be appropriate for the ASA to adjudicate these matters. But voters are deserving of protection, just like consumers.
Given that the result of the referendum has been significantly influenced by unsubstantiated, misleading and socially irresponsible advertising, voters should not be held to the resulting constitutional bargain. Furthermore, the Leave campaign should not be allowed to profit through their falsehoods. The best way for that to be achieved would be to allow Parliament to debate whether to execute Brexit or reject the result of the referendum as the unsafe result of misleading and unsubstantiated claims.
Brinsley Dresden is a partner and head of the Advertising & Marketing team at law firm Lewis Silkin LLP.