Reporting elections: definitions and summary

The Representation of the People Act makes it a criminal offence to:

• Make or publish a false statement about the personal character or conduct of an election candidate, if the purpose is to affect how many votes he/she will get. It is a defence to show the publisher had reasonable grounds for believing the statement was true, and did at the time believe it was true.

•  And; to publish a false claim that a candidate has withdrawn from the election, if the publisher knows it to be false and published it to promote another candidate.

Breach of section 106 is punishable by a fine of up to £5,000 and a company’s directors can be convicted.

Case study: Labour MP Phil Woolas lost his seat when his election was declared void after he was convicted of breaches of section 106 by publishing election addresses containing statements of fact about the character and conduct of Lib Dem candidate Robert Elwyn Watkins. These included his attitude to Muslim extremists and election expenses.

This ban in criminal law on such statements applies from the time formal notice is given that an election is to take place until the election ends. In local government, this is around five weeks. Parliamentary elections:  begins with the date of the dissolution of Parliament.

There is no specific statutory privilege for the media to publish election material produced by candidates or, what they say.

In election law, only an election candidate or their agent may incur any expenses relating to their campaign, including publication of an advert.

Ofcom has detailed rules on how broadcasters must be impartial in election and referendum periods.

• Due weight must be given to the coverage of major parties – broadcasters must also consider giving appropriate coverage to other parties and independent candidates with significant views
• All candidates must be offered the opportunity to take part in an item on their constituency
• Any report or discussion after the close of nominations must list all of the candidates

An exit poll describes any type of survey in which people who have voted are asked which candidate or party they voted for. There is a danger of influencing people who have not yet voted.

The Representation of the People Act makes it a criminal offence to:

• publish, before a poll is closed, any statement about the way in which voters have voted in that election
• publish, before a poll is closed, any forecast or estimate of that election result

Breaching section 66A can result in a fine of up to £5,000 or a six month sentence. It is legal to publish opinion poll data gathered before voting began and to report the results of exit polls as soon as polling has closed. Ofcom states broadcasters must not publish results of any opinion poll on polling day itself until the election poll closes.

The Returning Officer has legal responsibility for security and procedures at the count; there is no statutory right to attend.

Regulation: definitions and defences summary

Complaints about newspapers or magazines and their websites are channelled through a watchdog. A new watchdog began operating in 2014 – the Independent Press Standards Organisation – replacing the PCC.

In the UK, we have a relatively free press with no state controls on who can own or run publications. Print journalism does not have a requirement to be impartial like that of broadcast.

The newspaper and magazine industry established the PCC in 1991 to keep the threat of statutory regulation at bay. It did however, regulate the conduct of journalists and editors, and operated a free and relatively fast service to deal with complaints. Disclosure of the phone-hacking by News of the World killed the PCC and affirmed critics’ views of its ineptness however.

Leveson called for a new regulator – more independent of the industry than the PCC, with investigatory powers and the power to fine. IPSO will have the contractual power to fine up to a maximum of £1 million and will have a committee made up of not only editors but people outside of the industry as well. This is dissimilar to the Editors’ Code of Practice which was overseen by the PCC.

Stages of complaint:

An aggrieved person should complain first to the relevant editor

If they remain dissatisfied, they should then contact IPSO

Private or published apology enough? Intervention before publication? Financial penalty?

There are public interest exceptions to the ethical codes for journalists’ protection.

‘There is public interest in freedom of expression itself’

Clause 1: A significant inaccuracy, misleading statement or distortion must be corrected promptly, and any correction or apology must be given due prominence. The press must distinguish clearly between comment and fact.

Clause 2: A fair opportunity for reply to inaccuracies must be given.

Clause 5 states that reports of suicides should avoid giving excessive detail about the method used.

Journalists should normally be open when seeking information, making clear that they are the press. This means that normally photography or filming must be done openly and that eavesdropping will breach the code. The code says that such subterfuge should only be used when an open approach would not work, even when a public interest exception applies.

In the UK, it is legal for one party to record a phone call even if the other is not aware it is being done.

Broadcast regulation

Television and radio journalism is regulated by statute. Ofcom, an independent regulator, states broadcasters must be impartial when covering politics and social issues, and must be accurate, treat people fairly, respect privacy and avoid causing harm and offence. Ofcom licenses are granted for set durations and can be renewed. The BBC is not only subject to the Ofcom code but has a system of self-regulation.

Ofcom cannot shorten, suspend or revoke the licenses of the BBC, S4C or Channel 4; they are public service broadcasters. The body can fine up to a maximum of £250,000 or 5% of the broadcaster’s qualifying revenue.

Section1: protecting under-18s (TV watershed, radio limitations)

Section 2: avoiding harm and offence (*photosensitive epilepsy)

Section 3: covering crime

Section 4: covering religion

Section 5: due impartiality and due accuracy and undue prominence of views and opinions

Section 6: covering elections and referendums

Section 7: fairness (informed consent)

Section 8: protecting privacy

Section 9: commercial references in TV

Section 10: commercial communications in radio

Impartiality means not favouring one side over another – ‘due’ means adequate or appropriate to the programme’s subject or nature.