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Law Column: General Elections – don’t you just love ’em?

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The answer, of course, is that we do indeed love elections.  Just ask the many millions of people worldwide who don’t enjoy the right to keep or change their governments.

But it has to be said that from the legal perspective, elections pose their own, unique, challenges.  and the 2024 General Election is no different.

Media coverage of elections and election results is tightly controlled in the UK, with journalists and publishers having to face unique hurdles (and criminal penalties).

Inevitably, the daily rough and tumble of political life becomes more intense when former Honourable Members are fighting for re-election, and their political opponents want to take their places.

There’s a lot at stake, and from time to time, the process brings out the worst in people.

Journalists may relish this kind of mud slinging, but candidates and reporters alike should remember that it’s 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 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.

This prohibition rarely results in prosecutions, partly because mere comments or expressions of opinion are not caught by it, and partly because the reasonable grounds for belief exemption is pretty wide-ranging.  Nevertheless, when the allegations are flying, this is something to remember.

Polling day itself is always eventful, but journalists should remember two important matters.

First, before the polls close, it is illegal to publish any statement relating to the way in which electors have voted at the election, or to forecast the result.  Publishing the results of any exit polls before voting ends at 10:00 pm 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.

Second, there is no automatic right for members of the press to attend election counts.  Media attendance at election counts is within the discretion of Returning Officers.  Accordingly, at least technically, no permission from the Returning Officer means you cannot be present at the 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.

Advertising directors are equally keen on elections, because there is invariably an increase in paid- for advertising.  But you’ve guessed it: there are strict regulations as to the precise types of election advertising that may be accepted.

In a nutshell, only an advertisement for a specific candidate which is placed by the candidate, the candidate’s election agent, or someone duly authorised in writing by the agent, may be accepted.  Ads from anyone else should be rejected.

For example, in the last but one campaign, a pressure group wanted to buy a political ‘wrap’ in a weekly newspaper.  The pressure 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 this prohibition, and could have resulted in the publisher and the editor being prosecuted.

But to be clear, advertisements which support a political party, as opposed to a particular candidate, are acceptable, irrespective of who places it.

One little known legal requirement is that all election ads must specify the name and address of the promoter.  Again it’s a criminal offence for this information to be omitted.  (Fortunately, it’s not necessary for the publisher’s details to be printed).

Similarly, other  election materials prepared for the purpose of promoting or procuring the election of candidates, for example leaflets and posters, must also specify the name and address of the printer, as well as the promoter.

More generally, the usual rules relating to defamation, copyright, and trademarks apply.  Election publishing is no different to publishing at any other time, although usually, all (or at least most) those involved are more alert to the issues.

And of course, all these rule and regulations apply equally to social media.

So, the message to journalists and publishers is straightforward: you need to remain vigilant right up to the close of polls on July 4th.

Good luck – and have a great election campaign!