The Lobbying Act and Twitter: We need regulation, not instruction

The Electoral Commission’s comments on the use of social media under the Lobbying Act have caused yet another wave of anxiety and confusion, with accusations that the regulator is being heavy-handed and creating unworkable rules.

The Commission has said that organisations should record when employees are asked to use social media to promote a political campaign, and estimate the cost of those employees doing so.

This understandably raises a number of questions, and potential challenges, for organisations and those working within them.

But let’s look at this objectively and see if we can avoid a teacup-sized storm.

There are three issues here:

• Twitter is a real thing
• this only applies to activity (and tweets) that count as ‘regulated expenditure’
• the regulator can’t (and shouldn’t) pre-approve everyone’s campaigns.

Twitter is a real thing

Just because Twitter is easy to publish on does not mean it is not still publishing. Twitter is as meaningful a medium as a leaflet or tv advert is. (And if you doubt this, try saying something in contempt of court on Twitter and see what the attorney general does).

So, although the Lobbying Act doesn’t explicitly refer to social media, its requirement to account for expenditure on ‘election material’ extends to online publishing.

As for those who say their accounts are a mix of work and personal: it’s irrelevant: if it’s public, it’s public. If the account is closely associated with your work at the organisation, then the fact that you also use it for personal tweets really makes no difference. More generally, and at the risk of being rather unpopular, you and your employers may want to consider whether that’s really appropriate.

The greater danger relating to Twitter in our view, is not the Lobbying Act, but the chance of falling foul of Charity Commission guidance if charity staff tweet personal political views from their ‘personal’ accounts that are clearly associated with their employer.

Certainly we would recommend that organisations should have a policy in place for the use of social media by staff, to ensure that all messaging reflects the organisation’s values and mission.

(And on a personal note, while I’m interested in your professional insights, I am not following you to hear about the success or otherwise of whichever premier league football business you are tweeting about between these. Though to be fair, I do like a nice picture of your cat or your dog.)

This only applies to regulated activity

Before you even get into the question of how you assess the cost of your Twitter use, you need to ask whether it would count as regulated activity anyway.

The Electoral Commission are pretty clear on social media and have produced a specific factsheet.

As with all other activity, it is only regulated if it meets the two-pronged public test and purpose test:

•  generally, all material published on social media as part of a campaign will meet the public test;
• but the tweet is relevant only if its content can reasonably be regarded as intended to influence voters’ decisions.

If you’re not sure about whether your campaigns would be covered, Karl’s blog explaining how NCVO decided not to register might be helpful.

The regulator can’t (and shouldn’t) pre-approve everyone’s campaigns

There might be grumbles over the Electoral Commission saying it can’t give a definite answer to everyone’s questions, but imagine the issues that would arise if the regulator were to start dishing out definitive rules. A regulator can and should point you in the right direction, but you wouldn’t want them grabbing the wheel from you.

What the Electoral Commission is asking for is:

• if an organisation is planning a large scale, multi-media campaign ahead of the election,
• which can reasonably be regarded as intended to influence voters,
• then it should make an honest and reasonable assessment of the costs involved (including the time spent by staff in producing social media content).

This is not about counting the number of tweets that are posted or whether followers are being asked to share tweets or Facebook posts about a campaign. It’s about the cost of creating and running the campaign, and it’s leaving how you work out the details up to you.

This is as it should be. We don’t want an overly prescriptive regulator. The Electoral Commission’s approach leaves it open to individual organisations to come to a suitable assessment of their own costs. If the Commission did start issuing fixed rules, it would make life harder, not easier, for those who are considering whether or not to register.

The same approach is taken by the Charity Commission in its guidance on campaigning and political activity for charities: it explains the fundamental principles of independence and political neutrality, and outlines issues for charities to consider, but ultimately the decision is left to the judgement of trustees.

Life is a grey area

Yes, there is ambiguity in the law. We did all we could to highlight the problems of this legislation as it passed through parliament and we achieved meaningful changes. But some key questions remain open and the Electoral Commission has to produce its guidance within this framework. In addition, as with any new legislation there will be teething problems.

But there is no use in throwing up our arms over every bump in the road. We should not allow ourselves to become over-anxious because of some uncertainty, and we certainly shouldn’t be dissuaded from campaigning. The Electoral Commission has made very clear that it is not out to ‘get’ charities.

In all the concern over the Lobbying Act, charities mustn’t take their eye off the ball of the Charity Commission’s guidance on campaigning and campaigning during elections, which are far more likely to be relevant than the Lobbying Act is.

And let’s remember, the act, despite its many failings, exists for a reason – to provide for parity and transparency in elections. That we live in a society where this is valued is something we should take a moment to remember. Yes, it might be inconvenient for us occasionally, but it’s far better than the alternative.