What is the law on false statements and defamation about election candidates?
Under the Representation of the People Act 1983, there are criminal penalties in place for those convicted of making or publishing false statements about election candidates. This is to protect the democratic process and is in addition to the general, civil law on libel (which must obviously also be observed when reporting elections).
When does the Representation of the People Act 1983 apply?
The Act’s criminal offences only apply from the time that formal notice is given that an election is to take place until the point at which the election ends. This is around five weeks for local government elections. Formal notice for national Parliamentary elections is taken to be the date of the dissolution of Parliament or any earlier announced indication of Her Majesty’ intention to dissolve Parliament.
What are the offences under the Representation of the People Act?
Section 106 of the Representation of the People Act 1983 specifies that it is a criminal offence to make or publish a false statement of fact about the personal character or conduct of an election candidate. The purpose of making or publishing this false statement must be seen to be to affect how many votes the candidate will get.
Section 106 thus specifies that, in this offence, it must be a distinct statement of fact as opposed to an expression of opinion or comment about a candidate.
If a defendant can show that he/she has reasonable grounds for believing that the statement was true at the time of publication, then they will not be successfully prosecuted for this offence – even if the statement does turn out to be untrue. This differs from other defamation and libel actions whereby the defendant must prove that the statement is in fact true.
Section 106 also details a further offence: that of publishing a false claim that an election candidate has withdrawn from the election. The Act states that it will be an offence if the person responsible for this published statement knows that such a claim is false and has a purpose of promoting another candidate then they will be punished under this offence.
What is the penalty for breach of section 106?
The penalty for a breach of section 106 of the Representation of the People Act 1983 is a fine of up to £5,000. If a false statement is published by a company and not an individual, then the company directors may face conviction. In 1992 there was a conviction under the Act after an individual published a leaflet which claimed that Jack Straw ‘hated Muslims’. In 2006 a conviction was made against a Labour candidate who falsely stated that a Liberal Democrat candidate was a paedophile.
What will the consequences be for making false statements about election candidates under civil law?
The publisher of a false statement about an election candidate may, of course, face a libel action in the civil courts if it is believed to be a defamatory statement. However, it is much easier to get an injunction against the repetition of false statements through this criminal law than through a libel action because the criminal sanction of the 1983 Act allows a quicker remedy.
An election candidate, worried about their reputation, will most likely choose this route to deal with any false allegations made about them. A candidate who can prove a prima facie (‘at first sight’) case that he/she has been maligned by such a false statement can obtain such an injunction. In a libel action, it could take months to resolve at trial or through settlements due to the legal rule against ‘prior restraint’ which makes it difficult to get an injunction this way.
Does the 1983 Act cover false statement which are not defamatory but could be damaging?
Yes, the Representation of the People Act prohibits false statements even if they are not defamatory and bears some relation to the civil tort of malicious falsehoods in that damage must be proven by the candidate about whom the statement was made. One example is a £250 fine paid by a journalist in 1997 who published false allegations that an election candidate was a homosexual. It is not a defamatory statement to falsely state that a person is a homosexual yet in the context of an election in which the personal values of an individual can be at stake, it could lose votes. For instance, voters with certain religious beliefs might also be anti-gay and there is the potential for them to not vote for this particular candidate as a result of such a false statement.
What are the defamation dangers for the media reporting speeches and other material during elections?
Journalists must remember to observe civil law when reporting the heated debate about both politics and individual candidates during election campaigns. Candidates and their party supporters may make defamatory allegations about rivals yet a media organisation which then publishes these comments may be successfully sued for libel if it has no legal defence. There is in fact no statutory privilege for the media to publish election material or speeches made by candidates.
Nonetheless, the media can rely on qualified privilege which does protect fair and accurate reports of meetings and press conferences, provided all the requirements of this defence are met. Journalists must also remember that reporting the speeches and election material of extremist candidates could also be subject to legal proceedings based on stirring up hatred on grounds of race, sexuality or religion.