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•  And; to publish a false claim that a candidate has withdrawn from the election, if the publisher knows it to be false and published it to promote another candidate.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

Qualified Privilege

The term ‘tribunal’ defines a legal body which adjudicates on disputes in specialised areas of law.

Tribunals in the administrative justice system

There are over 70 types of tribunal but the majority rule on disputes between an individual, or a private organisation and a state agency.

Some tribunals that may be of particular interest to journalists include:

The Immigration and Asylum Chamber hears appeals against the Home Secretary on these issues

The Special Immigration Appeals Commission hears appeals against the Home Office to deport or exclude someone from the UK on national security grounds

The Social Entitlement Chamber of the First-tier Tribunal hears appeals from disputes about social security and child support payments, criminal injuries compensation and asylum support

The Health, Education and Social Care Chamber of the First-tier Tribunal hears appeals from people who have been banned from working for organisations concerned with children and vulnerable adults. This tribunal can also include doctors and dentists appealing against their exclusion from a list which allows them to provide work in NHS primary care

Disciplinary tribunals are usually sat in public unless they decide to exclude them from all parts of the hearing. Tribunals can issue a specific order to be held in private for example when confidential information is presented, if the tribunal feels that a prohibition would be necessary to avoid ‘exceptional prejudice’. McNae’s gives the examples of The General Medical Council, The Solicitors’ Disciplinary Tribunal and The Bar Standards Board’s Disciplinary Tribunal.

All tribunals are regulated by statute meaning that, as stated in the Defamation Act 1996, fair and accurate published reports of the public proceedings are protected by qualified privilege if the requirements of libel defence are met.

Proceedings of many tribunals are not as formal as those in a court of law; an appellant might not be represented by a lawyer. Journalists should remember that qualified privilege does not extend to any published material which is not in the public interest.

Some tribunals are classed as courts therefore media reports are protected by absolute privilege. A tribunal is defined as a court if it wields ‘the judicial power of the state’ but there is no comprehensive case law on which tribunals can be regarded as having this power. The Contempt of Court Act applies to the media coverage in this circumstance. However it is unlikely that reports would cause substantial risk of prejudice as judges/professionals are unlikely to be influenced. Although, there is always the possibility that a witness could be affected and any contact with a witness prior to these hearings could be contempt in common law.

Employment tribunals try cases of unfair dismissal and complaints of discrimination. Each employment tribunal usually has three members: a lawyer who is chair (officially the ‘employment judge’) and two lay members. From April 2012, the government announced there would be less oral evidence with witness statements ‘taken as read’.

A judge alone will preside in unfair dismissal claims. Journalists are provided with the details of the parties in a case and the nature of the claim once it is listed for hearing. In judgements, tribunals first decide on liability then to follow, often after an adjournment, there is a remedy.

The Employment Tribunals Act can be sat in private in the interests of national security or when a witness’ evidence is likely to contain information that would break statutory law/an obligation of confidence or information which would cause substantial injury to the appellant’s or employer’s interests.

There are restricted reporting orders on specific tribunals, especially in the case of sexual misconduct. Employment tribunals can exercise discretionary power to make temporary anonymity orders, to prohibit the identification on the person making an allegation and anyone affected by it. This is done to safeguard one’s reputation but an order cannot bestow such anonymity on an employer that is a company or institution unless that organisation is a small firm where identification is likely.

In 1997, the Court of Appeal declared it important that tribunals recognise that the power of anonymity was not to be exercised automatically but that the public interest clause was to be considered. A tribunal chair can decide whether the order should continue in force as a full order during the first hearing.

Any person can apply to make representations about an interim restricted reporting order.

It is noteworthy that a tribunal can revoke the order at any stage to permit the media to immediately identify someone and as soon as the tribunal’s written judgement is promulgated the order is automatically not in force.

Publishing matter that breaches a restricted reporting order is a summary offence punishable by a maximum fine of £5000. It is a defence to show that the publisher was not aware and neither suspected or had reason to that the material breached the order.

Under the Sexual Offences Act 1992, alleged victims were granted automatic anonymity unless the person gives valid, written consent to be identified. Restricted reporting orders also apply to disability cases, in the circumstance where publication is likely to cause significant embarrassment.

Contempt and defamation law affecting coverage of employment tribunals take upon the same restrictions as courts due to their classification.

–          Contempt of Court Act

–          Ban on unauthorised use of audio recording devices

–          Protected by either absolute or qualified privilege

The Inquiries Act 2005 empowers either a Minister or the chair of the relevant public inquiry to impose reporting restrictions.

Privilege will not apply to media reports in a private session of an inquiry, the findings are usually published by a government department, by Parliament or by the local authority.

A media report of a public inquiry published by officials anywhere in the world is protected by qualified privilege and there is no requirement for an explanation to be published. However a media report of this kind published by a UK local authority is protected by qualified privilege but is subject to publishing an explanation of contradiction.