Big data, small law: how gaps in regulation are affecting political campaigning methods and the need for fundamental reform

Technological developments, involving big data and data analytics, have enabled political parties and campaign groups to believe that they know or can accurately predict the political leanings of individual voters. Based on these developments, and coupled with psychological research deepening our understanding of decision making, campaign techniques involving individualised and targeted social media political advertisements have emerged. While research is not able to measure what impact, if any, these advertisements have there is a concern regarding the capacity of these techniques to influence in a non-transparent way by deceptively using personal data. In addition to protecting personal data, the law assumes that the electorate must maintain a ‘free mind’ and there must be a level playing field between political opponents. The current statutory framework is marked by an overlapping application of the Data Protection Act 2018, replacing the 1998 Act; the Political Parties, Elections and Referendums Act 2000; the Representation of the People Act 1983; and, the Communications Act 2005. As the evidence published in relation to several inquiries into these issues indicates, the gaps in the way this area is regulated means the law cannot adequately deal with the issues posed by the collection and use of personal data for the design and deployment of targeted social media political campaign advertisements. Further, the dependence upon these techniques by political parties and campaign groups mean that the necessary comprehensive reforms may never be made.

This is a pre-copyedited, author-produced version of an article accepted for publication in Public Law following peer review. The definitive published version Big data, small law: how gaps in regulation are affecting political campaigning methods and the need for fundamental reform. Citation: P.L. 2019, Apr, 362-379, is available online on Westlaw UK (http://legalresearch.westlaw.co.uk/) or from Thomson Reuters DocDel service(http://www.sweetandmaxwell.co.uk/our-businesses/docdel.aspx).

Citation: P.L. 2019, Apr, 362-379