Media coverage of elections and election results is tightly controlled, creating additional hurdles (and criminal penalties) for journalists. Here we set out the key pitfalls to be aware of throughout the campaigns.
1. False statements about candidates
Once an election has been called, it is a criminal offence for any person, for the purpose of affecting the return of any candidate at an election, to make or publish any false statement of fact (rather than merely comment or opinion) in relation to the candidate’s personal character or conduct, unless he can show that he had reasonable grounds for believing, and he did believe, the statement to be true.
The false statement need not be defamatory. It is enough for a statement to be intended to influence electors. In the run up to the 1997 general election, a journalist who published online a statement that a candidate was gay was fined £250. It was held that although not defamatory, making a false statement that a candidate is homosexual may cost the candidate votes if electors with religious beliefs decided not to vote for that candidate on the basis of that statement.
2. Media attendance at election counts
Media attendance at election counts is within the discretion of Returning Officers, meaning that technically, unless permitted by the Returning Officer, no media representatives may be present at an election count.
In practice, there is usually co-operation from the Returning Officer and there is rarely a problem in gaining access. However, both journalists and photographers may be required to make representations to the Returning Officer and complete a declaration of confidentiality pending the announcement of the results.
3. Restrictions on publishing exit polls before the polls have closed
Before a local government or Parliamentary poll is closed, it is illegal to publish:
(i) Any statement relating to the way in which voters have voted at the election where that statement is (or might reasonably be taken to be) based on information given by voters after they have voted; or
(ii) Any forecast (including estimate) as to the results of the election which is (or might reasonably be taken to be) based on the information so given.
Any reference to the “result of an election” is a reference to the result of the election either as a whole or so far as any particular candidate or candidates at the election is/are concerned. In other words, you cannot publish the results of any exit polls or forecasts based on those exit polls until voting has closed.
Breaching these requirements is a criminal offence, punishable by a fine of up to £5,000 and/or imprisonment for up to a maximum term of 6 months.
4. When paid for advertising can and can’t be accepted during election time
Strict regulations on election advertising mean that unless such an advertisement for a specific candidate is placed by the candidate himself, the candidate’s election agent, or someone duly authorised in writing by the agent, it should be rejected.
In the 2015 election campaign, a pressure group wanted to buy a political ‘wrap’ in a weekly newspaper. The group wanted to exhort electors to vote for any candidate but UKIP’s candidate. The wrap had to be refused because its publication would have breached S.75, and could have resulted in the publisher and the editor being prosecuted.
Advertisements which support a political party, as opposed to a particular candidate, are acceptable, irrespective of who wishes to place the ad.
All election advertisements must specify the name and address of the promoter. It is not necessary for the publisher’s details to be printed.
Other election materials prepared for the purpose of promoting or procuring the election of the candidate, for example leaflets and posters, must also specify the name and address of the printer.
6. Defamation, copyright and trademarks
So far as defamation, copyright and trade mark law is concerned, election publishing is no different to publishing at any other time, save that all those involved are perhaps particularly alert to issues surrounding brand and reputation.
During the 2010 general election, local members of one of the main political parties stated in their election materials, on three separate occasions, that their candidates had been endorsed by the region’s leading regional newspaper, and used the paper’s masthead to emphasise the so-called endorsement. The party in question only backed down after being threatened with a High Court claim for damages and an emergency injunction.
So remember – you need to remain vigilant right up to the close of polls on June 8th. The laws apply equally to social media.
Foot Anstey have produced a detailed guidance note identifying the most common pitfalls for journalists. To receive a copy of the full guidance note, please contact your usual contact at the firm.