The Electoral Commission has said charities will have to record their employees’ Twitter use, if those organisations have asked their employees to campaign. David Ainsworth says the rules don't make sense.

The Electoral Commission says under the Lobbying Act, organisations will have to record when employees are asked to use social media to promote a political campaign, and estimate the cost of those employees doing so.

The more I think about the Electoral Commission's latest diktat on recording employees' Twitter use, the more difficult it appears to obey, and the more it seems to be a perfect example of the “chilling effect” of the Lobbying Act at work.

There are several questions which occur.

What’s a campaign anyway?

This is an old chestnut with the Lobbying Act, but it’s a huge problem here. How do charities know what a political campaign is?

The Electoral Commission seems to work from the point of view that charities should know whether they’re campaigning on party political issues or not, while simultaneously saying that the Commission, not the charities, will decide whether a campaign is party political.

The decision to make the Commission the final arbiter means the actual test you need to pass is not straightforward. You can’t just say: “Do we intend this to be party political?”

Instead, the actual test is something like “Do we think the Electoral Commission would think we should think our campaign is political?” Which is Kafkaesque in its incomprehensibility, frankly. But that’s the law.

The bottom line is, almost anyone tweeting about any campaign might be non-compliant.

How do you know you've been asked to tweet?

The Commission says you only need to record something when “the organisation has asked employees” to send a tweet.

Well, what the hell does that mean? Who counts as “the organisation” for a start? It’s not like a charity has a monolithic artificial intelligence directing the actions of employees. The organisation is made up of employees, who decide to do things. Sometimes - daily, in fact - they make decisions about what they should do to represent their organisation.

Let’s say you’re a small-to-medium-sized charity running a campaign against a Tory council's plans to close a local youth centre. You have no idea whether this counts as party political campaigning, because when you asked the Electoral Commission, the guy on the other end of the phone just shrugged and said “It depends”. But you decide to do it anyway, because closing this centre has really hacked you off.

So your events manager asks everyone to tweet about an event to lobby against the closure, and then your head of fundraising asks someone to tweet a campaign to raise funds for that event, and sends an email asking everyone to retweet it, and your campaign team retweets a post by another charity which opposes the closure, which shares several trustees with you so for all you know it’s a linked organisation, and then everybody retweets that, not because they’ve been asked but because it’s understood that’s what you do, and then your trustees who work for both charities retweet one of those retweets.

Does any of that count? I have no idea.

What if you have a national anti-poverty organisation in which hundreds of people are constantly suggesting to other people that they might want to tweet about all sorts of things, including their bitter opposition to coalition welfare policies?

What if someone, in his role as a senior executive, decides it’s his job to tweet something. He’s effectively asked himself to do it, hasn’t he?

How do you even record it anyway?

So you’ve got a hundred staff members tweeting away like billy-o from accounts which say things like: “Senior high poobah at such-and-such a charity, cricket fan, part-time pastry chef and father of two. All views my own.” 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.

And how much does a tweet cost? I reckon it could be anything up to a fiver, depending on the organisation.

That sounds high, but bear with me. The average person in this country gets paid 26 pence per minute. Staff time might cost an organisation twice what they pay an employee, on average. The other half goes on the IT, tax, insurance, heating, lighting, rent, stationery and so on.

And you think it only takes a couple of seconds to send a tweet, but it doesn’t. Sending an official work tweet frequently takes at least a couple of minutes, because you tend to think quite carefully about your wording, and it takes a long time to get your message down to 140 characters. From time to time, much longer. Especially when you factor in the time it takes to gather images, links, hashtags discuss it with a colleague, and so on.

Someone’s supposed to be keeping track of all that, and checking that it doesn’t amount to party political campaigning, and that you haven’t blown more than £10,000 campaigning on these issues in a single constituency.

God knows who is supposed to do this, or how they’re supposed to assess what’s happening.

How do you prove it to the Commission?

The Electoral Commission, when I asked all the above questions, said all that stuff is “for the organisation to decide”.

Well, sorry, but that’s cobblers. We’ve already see that the Commission, not the charity, is the final arbiter of whether what the charity is doing is right. If they decide that it looks like the charity might have asked someone to tweet, then presumably the law says the charity has done, whether they actually intended to or not.

All their responses have been infuriatingly vague, really. My suspicion is that they don’t really have the answers. They’re flying a kite, trying things out, because they’re feeling their way with this law just like everyone else. After all, they didn’t make these rules, didn’t choose them, and have made it clear they don’t like them. They’re just in charge of enforcing them.

Even so, what a cop out. My message to the regulator is that it’s you, the Electoral Commission, who are the ones in charge of enforcing the law. It’s your decision as to whether it’s been broken. So like it or not, you need to say what the law means. Leaving charities to make their best guess is completely unfair.