Home > Election, Media > Are newspaper websites breaking election laws?

Are newspaper websites breaking election laws?

Okay, it is an alarmist headline – but bear with me.

Under the election laws, third parties spending more than £10k in England, on material promoting a political party, in the twelve months prior to a general election, have to register with the Electoral Commission and are subject to a spending limit. Once Parliament has been dissolved, it is illegal to spend more than £500 on a material promoting or disparaging a particular candidate in an election.

The term ‘election material’ is defined broadly and goes beyond those materials that expressly name a party or candidate. The Electoral Commission interprets this provision to apply to material that aims to campaign for a party, group of candidates or policies (the purpose test), and which is made publicly available (the publicity test). If these tests are satisfied, material posted on a website will fall within the category of ‘election material’ and be subject to the third party spending regulations.

It is fairly obvious to anyone in the UK at the moment that newspapers are in the business of producing material that aims to influence the election campaign. They also spend over £10k in England in producing this content. So why don’t they have to register with the Electoral Commission and why aren’t they subject to a spending limit? The answer is simple: newspapers and broadcasters are exempted from controls on third party spending – s.87 of the Political Parties, Elections and Referendums Act states the controls don’t apply to:

the publication of any matter relating to an election, other than an advertisement, in—

(i)     a newspaper or periodical,

(ii)     a broadcast made by the British Broadcasting Corporation [by Sianel Pedwar Cymru or by the Gibraltar Broadcasting Corporation], or

(iii)     a programme included in any service licensed under Part I or III of the Broadcasting Act 1990 or Part I or II of the Broadcasting Act 1996;

But what about material on a newspaper website? Much of the material published on the newspaper website appears in the printed paper, so that is arguably covered under the exemption set out above. But now much content appears on newspaper websites that does not appear in the printed paper. Many newspapers and magazines have free-standing websites that employ their own staff and engage in electoral advocacy. Whether this is covered by the exemption depends on what we mean by ‘in a newspaper or periodical.’

The exemption does not cover anything done by a newspaper or periodical. For example, if a newspaper company spent its funds on a one-off leaflet advocating the election of a particular party (separate from the ordinary paper) that would not fall under the exemption. Nor can the terms ‘newspaper or periodical’ simply be read to cover any website that posts material on a regular basis – that would blow a huge hole in the election laws.

The issue arises in other places in the law. For example, newspapers and periodicals are exempt from VAT – but does this extend to subscriptions to only the newspaper website? The guidance of the HMRC suggests that the VAT exemption applies only to printed materials – but tell me if I am wrong, do you pay VAT on a subscription to the FT online? Either way, this is not decisive for the purposes of election laws, but shows how the problem crops up elsewhere.

Of course, no one wants to see the newspapers gagged. The point is that there seems to be a legal grey area. I haven’t researched the specifics of newspaper websites thoroughly, so maybe there is an obvious answer which I am missing. If not, the current law has probably survived because it has yet to be tested or challenged.  Putting the specifics aside, the issue raises a broader point about the status of the exemption in relation to the online media. For example, should news providers that exist only online be subject to the exemption? This is something I mention in Chapter 8 of Democracy Distorted, and will need to be considered in the future.

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