What are the legal restrictions on publishing exit polls during elections?

What constitutes an exit poll?

The definition of an exit poll is a survey which asks voters, after they have voted at polling stations, which candidate and/or political party they have voted for. Exit polls are valuable reporting tools as, when carried out accurately and scientifically, the surveys can produce predictions of the eventual outcome of the election.

What is the reasoning behind laws restricting the publication of exit polls?

It has been argued that the publication of such data, or the predictions made subsequently, could affect the election results by influencing those voters still yet to vote. The reasoning, although these conclusions have been disputed, is that the democratic process should not be in any way contaminated. Voters could alter their initial voting intention after hearing that a particular party or candidate has the majority according to exit polls. Fo instance, a voter may switch to vote for a candidate or party that seems to be winning, according to the exit polls. Otherwise, a voter may decide not to vote whatsoever because the candidate or party they would have chosen is not in the lead, according to the exit polls, or that their candidate or party does not seem to need any further votes to win.

There are two broad concerns that can summed up from this outline of the concerns over the publication of exit polls. The law regarding this topic has been put in place to avoid a scenario whereby a later group of voters has been subject to, and potentially influenced by, data that earlier voters will not have considered. Worse still, it is possible for such data and predictions to be either inaccurate or even intentionally false. Either way this indicates a potential contamination of the democratic process of electing Members of Parliament or members of local councils.

What does the law actually state on the publication of exit polls?

The Representation of the People Act 2000 inserted a section 66A into the initial 1983 of the same name and this read as follows. It is a criminal offence ‘to publish, before a poll is closed, any statement about the way in which voters have voted in that election, where this statement is, or might reasonably be taken to be, based on information given by voters after they voted.’

Not only statements and statistics but also making forecasts based on exit polls, constitute an offence. The 2000 Act specifically makes it an offence ‘to publish, before a poll is closed, any forecast – including any estimate – of that election result, if the forecast is based on exit poll information from voters, or which might reasonably be taken to be based on it.

These laws apply to both Parliamentary and local elections, elections to the Welsh Assembly and to by-elections. The 2000 Act applies both to exit polls conducted to focus on voting in a particular constituency or ward and to voting patterns nationally. Furthermore, the publication of exit polls is also prohibited during voting for European Parliamentary elections.

What happens if an exit poll, or forecast based on an exit poll, is published before voting closes?

In this case then under section 66a, the publisher concerned would be liable to a fine of up to £5,000 or even a jail term of up to six months.

What opinion poll data or exit poll data can be published and at what stage in the voting process?

It is safe for publishers to make reference to opinion poll data on the voting intentions of the public (whether a constituency or the nation) before voting opens. The reason that this is legal is that such data as would be gathered from interviewing voters about their intentions but not interviewing them about how they say they actually voted. The law deems this a suitable marker as the argument goes that simply reporting voters’ intentions would not sway other voters either way. It would not be democratic either to stifle all comment on how voters intend to vote – in this extreme, the media would not be able to gather any indication of the mood of the constituency or nation.

Equally, once the voting window has actually closed then exit polls can have no effect on voters yet to go to the polls and so publication at this stage is also legal. This applies to the results of exit polls as well as forecasts based on these statistics. This practice is frequently carried out on election night TV programming. If voting occurs over a number of days and not just one ‘election day’ (as is increasingly being trialled to give more people a chance to vote) then of course the end of voting on any of the days except the final day of voting does not give publishers the right to publish exit polls.

The Times narrowly escaped legal action when they published an opinion poll in June 2004 on how people had voted in areas that had used all-postal ballots. Since the poll was published in the newspaper during the European Parliamentary elections that it referred to, the Electoral Commission (an independent watchdog on elections) alerted the Crown Prosecution Service. The Electoral Commission stated that publishing such an opinion poll amounted to publishing an exit poll before voting had closed. Nonetheless, the Crown Prosecution Service decided not to take any action against The Times, after discussions took place on the matter with the publishers.

What controls do the regulatory codes of broadcasters place on the publication of exit polls?

The Ofcom Broadcasting Code (which forms part of the BBC Editorial Guidelines) states: ‘No opinion poll may be published on the day of the election until the polls close, or in the case of the European election, all the polls have closed across the European Union.’