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False statements and election law

 

Ballot iStock 000006080605XSmall 146x219Aathelstone Aamodt looks at the issues where false statements are made about an election candidate.

Defamation claims have have tended to be the preferred cause of action for people who have had false and damaging statements made about them. However, if a person is a candidate in an election, the law of defamation can have its limitations; what if a newspaper publishes an article about a candidate that is defamatory and, despite threats and protestations from candidate, the newspaper intends to argue that article is true even if it is not?

It is a well-established principle (see for example Bonnard v Perryman [1891] 2 Ch. 269, Fraser v Evans [1969] 1 Q.B. 671, Green v Associated Newspapers Ltd [2004] EWCA Civ 1462) that courts in this country will not grant an interim injunction against a publisher if the publisher intends to rely on the defence of truth, the so-called “rule against prior restraint”. The unfairly maligned election candidate cannot therefore prevent (for a example) an editor with an axe to grind from publishing damaging statements that could effect the outcome of an election .

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Section 106 of the Representation of the People Act 1983 was enacted to remedy such a situation.

106 False statements as to Candidates

(1) A person who, or any director of any body or association corporate which—

(a) before or during an election,

(b) for the purpose of affecting the return of any candidate at the election,

makes or publishes any false statement of fact in relation to the candidate’s personal character or conduct shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, that statement to be true.

(2) A candidate shall not be liable nor shall his election be avoided for any illegal practice under subsection (1) above committed by his agent other than his election agent unless—

(a) it can be shown that the candidate or his election agent has authorised or consented to the committing of the illegal practice by the other agent or has paid for the circulation of the false statement constituting the illegal practice; or

(b) an election court find and report that the election of the candidate was procured or materially assisted in consequence of the making or publishing of such false statements.

(3) A person making or publishing any false statement of fact as mentioned above may be restrained by interim or perpetual injunction by the High Court or the county court from any repetition of that false statement or of a false statement of a similar character in relation to the candidate and, for the purpose of granting an interim injunction, prima facie proof of the falsity of the statement shall be sufficient.

The test that section 106 applies is not the same as the standard applied in defamation; the section 106 standard is lower and has a specific focus:

  • the purpose of the statement must be to affect the return of any candidate (i.e. the election result);
  • the statement of fact needs to be false;
  • the statement must relate to the personal conduct or character of the candidate.

There is therefore no need to show that the statement would tend to lower the candidate in the estimation of right-thinking members of society and be likely to cause the candidate serious harm (the test in defamation). In other words the candidate has cause even if the publication isn't defamatory. And all that is needed in obtaining an injunction is “prima facie” evidence – nothing more. In the case of defending the charge of an illegal practice, the defendant has to show that he had reasonable grounds for believing, and did believe, that statement to be true. In defamation proceedings the defendant needs to show that the statement is substantially true. Belief does not enter into it and the test is objective.

Section 106 attracted the attention of the media this year when George Galloway, the unsuccessful Respect Party candidate for the Bradford West constituency, threatened to start legal proceedings over false statements made about him during the course of the general election (Mr Galloway failed to lodge his proceedings in time however). What a false statement amounts to has been analysed by the courts. In Pirbhai v DPP [1995] C.O.D. 259 QBD, it was held that writing in a pamphlet that Jack Straw “hates Muslims” was a false statement of fact (and not opinion) and thus section 106 applied. In R (Woolas) v Parliamentary Election Court [2012] Q.B. 1 the Divisional Court added further exposition with respect to section 106 and held that “statements” were ones that related to the personal character of a candidate, as opposed to his or her political opinions. To impose criminal sanctions on a person who fails to exercise care when making statements in respect of a candidate’s political position or character that by implication suggest that he or she is a hypocrite “... would very significantly curtail the freedom of political debate ...” (R (Woolas) v Parliamentary Election Court [2012] Q.B., 43). To allege that someone is a hypocrite in a different sense (e.g. in their business dealings) would pertain to personal conduct and would therefore be caught by section 106. In other words, campaigns should play the ball and not the man.

Making a false statement is defined as an “illegal practice” under the Act. Section 169 holds that: “a person guilty of an illegal practice shall on summary conviction be liable to a fine not exceeding level 5 on the standard scale; and on a prosecution for an illegal practice it shall be sufficient to allege that the person charged was guilty of an illegal practice.”

Section 159 holds that “If a candidate who had been elected is reported by an election court personally guilty or guilty by his agents of any corrupt or illegal practice [including making a false statement] his election shall be void.” It also holds that:

(3) A candidate at a local government election in Scotland who is reported personally guilty or guilty by his agents of any corrupt or illegal practice shall also be incapable from the date of the report of holding the office of councillor of any local authority in Scotland—

(a) for ten years, if reported personally guilty of a corrupt practice,

(b) for three years, if reported guilty by his agents of a corrupt practice, or

(c) during the period for which the candidate was elected to serve or for which if elected he might have served, if reported personally guilty or guilty by his agents of an illegal practice,

and if at the date of the report he holds any such office, then the office shall be vacated as from that date.

The penalties for engaging in such conduct are therefore severe.

Athelstane Aamodt is a barrister at 4-5 Gray’s Inn Square. He can be contacted on 020 7404 5252 or by email.

 

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