THE LOBBYING ACT IMPLICATIONS FOR SOCIAL MEDIA

THE LOBBYING ACT IMPLICATIONS FOR SOCIAL MEDIA Helen Magee THIS BRIEFING DOES NOT CONSTITUTE FORMAL LEGAL ADVICE

introduction The Transparency of Lobbying, Non Party Campaigning and Trade Union Administration Act (the Lobbying Act) became law on January 30 2014. 1 Part Two of the Act updates the legal framework for non-party campaigners. It is this aspect of the legislation that has caused concern within the charitable sector. It includes the requirement for organisations to register with the Electoral Commission (EC) if they spend more than 20,000 in England or 10,000 in any of Scotland, Wales or Northern Ireland on regulated campaigning activities during the regulated period before an election. The current regulated period began on September 19 2014 and continues to the day of the general election on May 7 2015. Certain activities will be regulated if they can reasonably be regarded as intended to influence voters for or against political parties or categories of candidates, (the purpose test ), and are aimed at the public (the public test ). 2 These activities include: press conferences and other media events transport in connection with publicising a campaign election material (leaflets, adverts, websites etc) canvassing and market research public rallies and public events In July 2014 the EC produced 300 pages of guidance on how to comply with the new law. Many in the charitable sector found it complex and unclear. The National Council of Voluntary Organisations (NCVO) and others sought further clarification. As a result the EC has now produced additional guidance, held a series of webinars and provided a Frequently Asked Questions section for non-party campaigners on its website. However, many NGOs will still find it time-consuming to work their way through the detail and until tested, certain aspects of the legislation remain uncertain. The growth of social media has provided greater opportunities for NGOs to campaign and influence opinion in recent years. It is hoped that these notes will be useful in highlighting issues NGOs should be aware of if they are using social media during the regulated period. The public test The EC has now produced an additional factsheet for nonparty campaigners on social media. 3 It states that generally, all material published on social media as part of a campaign will meet the public test. This assumes that social media is usually aimed at, seen or heard by, or involves the public. Public is not defined by the Act. However some individuals are exempt: members and committed supporters people in regular communication with a charity Where an organisation has a general mailing list, it is expected to assess what proportion comprises members of the public and what proportion is made up of committed supporters. Committed supporters include those actively involved in the organisation. In the Charity and Social Enterprise Update for Autumn 2014 provided by law firm, Bates Wells Braithwaite, Rosamund McCarthy points out that active involvement has not been defined and ambiguity remains as to how this should be interpreted The issue, therefore, is where the line should be drawn. Would signing a petition more than once, or writing to an MP, mean that someone becomes actively involved? How regular must any activity be, to be deemed active? The guidance does not provide further clarification. 4 In an article for Third Sector, Alison Talbot of law firm, Blake Morgan, cautions there is a view that Twitter, LinkedIn and Facebook are aimed at supporters, but that is not the case the guidance says these are communications with the public. 5 Jay Kennedy, Policy Director at the Directory of Social Change, argues that the EC s definition of public and supporters doesn t work when it comes to social media. They need to come up with something better and they haven t so far. If you send a newsletter to your members, it can be treated as not public because they are committed supporters, but increasingly communications are open to everyone on social media it s changing the way people connect and get information. Charities should think of anything published on social media as public, whether it s aimed at committed supporters or not. The purpose test If campaign activity is clearly aimed at supporting or opposing the proposed legislation of the government of the day, and not the proposed policies that the party or parties in government will take to the election, campaign activity will generally not be regulated. But material published on social media will meet the purpose test if it contains content that can reasonably be regarded as intended to influence voters. NGOs are already required by charity law to act in a non-partisan manner. The Charity Commission guidance states that charities must retain independence and political neutrality, must never engage in any form of party political activity, and must take reasonable care to avoid adverse perceptions of their independence and political neutrality. 6 It may therefore be difficult for charities to understand how their activities could meet the purpose test. However, under the Lobbying act, a campaign activity may meet the purpose test even if the aim is to achieve something else, such as raising awareness, if it can reasonably be regarded as intended to influence voters. Moreover, it is not necessary to name a political party or group of candidates as part of the campaign if the organisation advocates support for a policy that is associated with one or more political party. 7 1

Elizabeth Chamberlain, NCVO Policy Manager, believes that there will be few circumstances where charities are likely to come within electoral law. But the Lobbying Act will cause new difficulties in addition to the restrictions already imposed under charity law by saying it s also how a reasonable person would see that activity slightly different emphasis. Thus the test of intention is what a reasonable observer would think rather than what an NGO thinks. Others agree that there will be few occasions when charities fall foul of the Act, but are concerned about the general impact on campaigning. Jay Kennedy believes that the end result is it isn t likely to catch many organisations. The real concern is that it will have a silencing effect because there is so much uncertainty, people are fearful. In order to ensure they do not unintentionally fall foul of the Lobbying Act, therefore, NGOs should be particularly aware of the following: Issues taken up by political parties during the election Online activities and issues should always be restricted to those that are clearly relevant to the NGO s charitable purpose, but problems could arise when issues that charities have campaigned on for some time are adopted by political parties or become politically divisive during the election campaign. Where the charity supports a popular cause, candidates may find it politically advantageous to support the charity, but the charity should be careful to ensure that it is not seen as reciprocating that support. There is cross party consensus on the ring-fenced aid budget at the moment, but this could become politically contentious. Chamberlain cautions that campaigning on a policy issue which becomes politically divisive in the run-up to the election could mean that even though it s ok under charity law, it could bring the Lobbying Act rules into play Something that wasn t party political could become so over the next few months. You can continue to campaign but be cautious. The public could perceive the issue as relevant to their vote. One way for organisations to ensure their activity is not seen as regulated activity, according to NCVO, is to demonstrate that it is something they have been campaigning on over the long term. The EC takes a similar view: the fact that a political party subsequently takes up an issue or the issue becomes politically divisive should not mean that it has to be regulated, unless charities alter or increase activity around that issue. They have recently clarified what increase and alter mean. Where a charity reacts publicly to policy announcements which clearly affect the achievement of its charitable purposes, this will not generally be regulated. However, if you continue to refer to the party s support in future campaigning activity, that is likely to meet the purpose test By altering or increasing your campaigning we mean spending on campaigning activity of a type and scale in reaction to the political party s support and which you would not typically undertake in the usual course of your campaigning. 8 In general, therefore, an NGO would have to scale up or adopt new types of campaigning to meet the purpose test. Messaging The EC factsheet on social media cautions charities to be aware of tone, context and timing, and calls to action. It is advisable for NGOs to adopt a neutral tone in all their social media campaigns and on all platforms Twitter, Facebook, blogs etc. If they express any criticism or support, they should ensure it is about the policy issue, not a particular candidate or political party. Elizabeth Chamberlain believes a lot of situations will come down to a case by case decision. But it s important for charity trustees to have had that conversation and looked at their planned activities, the type of messaging and their campaign tactics. Twitter Material on social media tends to be written more quickly and with less consultation. Tweeting in particular can be very high-risk and raises a number of potential problems. Recent cases, for example, Oxfam s Perfect Storm tweet, have demonstrated that charities need to use social media judiciously even outside of electoral law. Chamberlain thinks there s a perception that because it s easy to tweet and post, you don t have to think too much about what you say. But Twitter is only the contemporary equivalent of reports that would have been published five years ago. No one would have published these without thinking about the tone, wording and message. Charities are keeping up with technology, but not necessarily with best practice. Under charity law, NGOs should be especially wary of associating or becoming associated in the minds of the public, with a particular candidate or political party. 9 The Family Childcare Trust was reported to the Charity Commission in 2014 for the use of a particular hashtag (#childcarecrisis) which was seen as being closely associated with the Labour Party. The Charity Commission s decision was that the law had not been breached, but that the organisation should be more careful in how it was perceived by other people. In the runup to the election it will be particularly important for NGOs to avoid using hashtags that are clearly associated with one political party. NGOs sometimes encourage staff to tweet from their own accounts and advocate on behalf of the charity. During the regulated period the EC has said it will monitor charities social media activity including employees using personal accounts, in order to check whether those charities are compliant with the Lobbying Act. 10 Most NGOs have social media policies to mitigate the risk 2

of careless comments bringing the charity into disrepute. Staff often add some form of disclaimer if tweeting from their personal Twitter accounts, for example these views are my own. However, these measures have not been tested under the Act and staff who are members of political parties are advised not to tweet. David Ainsworth argues on his Civil Society blog that it will be impracticable for the EC to monitor all charity social media use in order to assess its purpose and related costs. 11 So you ve got a hundred staff members tweeting away like billy-o They tweet their own views, the charity s views, and stuff which could be either. You re supposed to assess whether they re tweeting on your behalf or their own, how much time they re all spending doing it, and what that time is worth. Thousands of times a week, presumably. Costing tweets becomes relevant when social media plays a major part in a campaign. Organisations that decide to register will have to make reasonable assessments of the cost based on who is responsible for social media, how much they are paid and how much time they spend on Twitter, Facebook, YouTube etc. All political parties, candidates and MPs should be treated equally online. If an NGO wants to tweet thanks to an MP for attending a particular event, then it must take care over the wording of the tweet and ensure it could not be perceived as being supportive of the MP. Jay Kennedy argues if you wanted to show due diligence, you could show that you ve invited others from other parties and that there is no pattern of only inviting MPs from one party. NGOs may wish to consider keeping a record of Twitter and other social media to ensure party political balance. If staff are using an NGO account they should never re-tweet anything that could reasonably be interpreted as an endorsement of a party or candidate. Social media guidelines Both the charity and electoral commissions are more likely to be sympathetic towards NGOs that can demonstrate they have processes in place to monitor their social media practice. Charities are looking at different ways to ensure that staff at all levels are up to speed with the new legislation and its implications. These include: Working groups around the Lobbying Act to address issues and review campaigns Awareness training for those responsible for social media Internal staff guidelines on the Lobbying Act that relate to their standard social media guidance Risk matrixes enabling staff to go through all the questions posed by the purpose test followed by a sign-off process out best, followed by #LibDems and #Conservatives. BETTER: All parties have now published manifestos. Have a look to see what they say about #climatechange: link here (to all parties). Registration NGOs have to consider whether their planned campaigning activity is regulated under the Lobbying Act and measure the cost of such activity. NGOs planning to spend more than the permitted limits must register with the EC as non-party campaigners and fulfil reporting requirements on the time and expenses spent on regulated work. Volunteers activity is not included in the Lobbying Act and many smaller NGOs are unlikely to have large enough budgets to reach the spending limits. Other NGOs will want to avoid the compliance risks and general public exposure of registration. But before deciding whether to register, NGOs are advised to review all of their campaign plans in light of the Act and seek trustee endorsement for their decision. NCVO has provided a very helpful explanation of its own decision-making process on its website. 12 For those who decide that they are not likely to meet the purpose test or spend above the permitted limit, it is advisable to review the situation on a regular basis because the environment in which they operate can change. Registration is free and possible at any point during the regulated period. recommendations NGOs are advised to: Follow their obligations under charity law Consult the EC guidelines on social media Review their social media campaigning activities on a regular basis even if they decide not to register Update social media guidelines to all staff and review internal sign off procedures Provide a contact point for staff who require advice Keep social media campaigns politically balanced Avoid the use of hashtags or messaging that is associated with a political party or candidate Avoid scaling up or altering campaign activities on long-term issues that become politically contentious during the election campaign Seek legal advice if uncertain about the implications for their own social media activities. The Lobbying Act is new and until tested, some uncertainty is inevitable Highlighting good and bad Twitter practice (for example BAD tweet: We compared parties policies on #climate change: #Labour comes 3

For further guidance see: Electoral Commission http://www.electoralcommission.org.uk/i-am-a/partyor-campaigner/non-party-campaigners Charity Commission https://www.gov.uk/government/publications/speaking-out-guidanceon-campaigning-and-political-activity-by-charities-cc9 NCVO http://blogs.ncvo.org.uk/2014/07/15/electoral-commission-guidanceon-the-lobbying-act-some-key-questions-answered/ Bond http://www.bond.org.uk/data/files/campaigns/bond_-_lobbying_act_-_10_key_things _to_know.pdf Third Sector http://www.thirdsector.co.uk/lobbying-act Acknowledgements We would like to thank all those who helped us with this report, including Elizabeth Chamberlain, Policy Manager, National Council for Voluntary Organisations; Jay Kennedy, Policy Director, Directory of Social Change; and Rosamund McCarthy, Bates Wells Braithwaite Design by birdy. Helen Magee is a writer and broadcaster and author of two previous IBT reports, The Aid Industry what journalists really think and The East African famine did the media get it right? References 1. http://www.legislation.gov.uk/ukpga/2014/4/contents/enacted 2. http://www.electoralcommission.org.uk/ data/assets/pdf_file/0008/169451/ intro-campaigner-npc-ukpge.pdf 3. http://www.electoralcommission.org.uk/i-am-a/party-or-campaigner/non-partycampaigners/guidance 4. McCarthy, R. Preparing for the general election. Bates Wells Braithwaite Charity and Social Enterprise Update, Autumn 2014. 5. http://www.thirdsector.co.uk/charities-comply-new-lobbying-act/communications/ article/1309023 6. Press release. New Electoral Commission campaigning guidance. The Charity Commission,14 July 2014 7. http://www.electoralcommission.org.uk/ data/assets/pdf_file/0010/165961/ intro-campaigning-charities-npc.pdf 8. http://www.electoralcommission.org.uk/i-am-a/party-or-campaigner/non-partycampaigners/faqs-for-non-party-campaigners-at-the-uk-parliamentary-generalelection-in-may-2015 9. https://www.gov.uk/government/publications/speaking-out-guidance-on-campaigningand-political-activity-by-charities-cc9 10. http://www.civilsociety.co.uk/finance/news/content/18326/charities_using_social_ media_will_be_monitored_in_the_run_up_to_general_election 11. http://www.civilsociety.co.uk/governance/blogs/content/18347/ 12. http://blogs.ncvo.org.uk/2014/09/19/ncvo-the-lobbying-act-and-registering-with-theelectoral-commission/ About IBT IBT (The International Broadcasting Trust) is an educational and media charity workingto promote high quality broadcast and online coverage of the wider world. Our aim is to further awareness and understanding of the lives of the majority of the world s people and the issues which affect them. IBT regularly publishes research and organises events to encourage a greater understandingof the role the media plays in engaging people in the UK with the wider world. We are a membership based organization. We organize briefings for our members so that they can work more closely with broadcasters and producers. For a current membership list see the members page of our website www.ibt.org.uk January 2015 4