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How to stay on the right side of Election Law
By Matt Abbott | 27th Nov 2019
By David Banks.
THIS is going to be an interesting couple of weeks as we approach the general election and coverage will be scrutinised by the various parties as never before.If you want to stay the right side of the law here is a quick guide to the various law that could cause you difficulty.
This is an amended post I ran five years ago on an old blog, but a lot of people found it useful, so it bears repetition.
Firstly, libel, it’s always with us, but elections are that special time when candidates lay into each other with abandon and occasionally say something defamatory. Remember it is no defence to say you are simply reporting what someone else said (see below).
Anyone who repeats a libel is potentially liable for it and a defamed candidate may decide to sue the relatively wealthy media outlet that has repeated the libel rather than the relatively poor opponent who originated it.
Beware accusations of racism, fascism and plain old lying. However, if you are reporting remarks made at a public meeting or press conference, then you have a defence of qualified privilege, so long as you are reporting fairly, accurately, on a matter of public interest and without malice. Don’t get overly worked up about malice – the malice of the speaker does not ‘infect’ your report of their speech and has never yet destroyed a defence of qualified privilege mounted by a media organisation in these circumstances.
False statement about election candidates
Section 106 of the Representation of the People Act 1983 makes it a criminal offence “to make or publish a false statement of fact about the personal character or conduct of an election candidate if the purpose of publishing the false statement is to affect how many votes he/she will get.”
The false statement must be a statement of fact, not opinion. It is a defence to show at the time of publication you had reasonable grounds for believing the statement to be true.
A journalist who published false claims that a candidate was homosexual was fined £250 in 1997. Note that it is no longer defamatory to say that someone is gay (unless it implies they are dishonest by concealing their true sexuality) but it could contravene this law. The reason being that if the voters included those whose religious beliefs cause them to hold anti-gay views, then such a statement could affect turnout for the candidate.
The 1983 Act also makes it an offence to publish a false claim that a candidate has withdrawn from the election if you know the claim is false and it is being made to promote the election of another candidate.
Impartiality of broadcasters
The Ofcom code and BBC Editorial Guidelines have detailed guidance on achieving impartiality. Several radio stations have been fined by Ofcom after presenters declared political allegiance on air.
Section 66A of the 1983 Act makes it an offence to publish the results of an exit poll before polling has finished. The reason being if the exit poll reveals a runaway winner it may discourage people from voting and thwart the democratic process.
It is also an offence to publish a prediction of an election result if it is based on such a poll. Those using social media to gauge how people are voting need to be especially careful here. It might be technically possible to make predictions based on hashtagged tweets etc and to map how the vote is going. Make sure you do not publish anything based on these metrics on election day before the polls close.
Admission to the count is the responsibility of the returning officer. There is no national media policy, so best make contact early to make sure of arrangements for the night.
This election will be as hard-fought on the battlefields of Twitter and Facebook as it is on the street and we have already seen the early skirmishes. While the behaviour of the various parties may leave much to be desired, don’t get dragged into it as a journalist. The laws above apply just as much to your social media posts as they do to your print or website publication. Enjoy the race, but let’s be careful out there.
David Banks is a journalist, author, commentator and leading media law expert. David provides free media law guidance to members of ICNN.
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