In recent weeks, journalists covering the General Election campaign will have had to acquaint themselves with the Representation of the People Act 1983. The first area of interest is section 106, which applies during an election campaign and makes it a criminal offence to publish a false statement of fact in relation to the personal character or conduct of a candidate for the purpose of affecting that candidate’s return.
The section has teeth: in 1998 a journalist who published on the internet false allegations about a candidate in the 1997 election was fined £250, having claimed that the candidate was gay. It was made in the run-up to the election but section 106 applies not only during an election but before the campaign as well.
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The false allegation has to be a fact relating to the personal character or conduct of the candidate and not merely an opinion or political inaccuracy.
In the heat of an election, with allegations and counter allegations flooding the media, it is worth remembering that the normal rules of libel apply with their usual thoroughness. Briefings by spin doctors are not covered by qualified privilege, not all candidates can be trusted to get their facts right and a defamatory allegation against a party leader can be expensive.
For example, David Steel, then leader of the Liberal Democrats, sued the News of the World in 1987, which resulted in the paper having to pay substantial damages and apologise for a pre-polling day accusation of adultery with a constituent. MPs, as they become again after the election, are regular clients of m’learned friends.
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Unlike their colleagues in print, in the past broadcasting journalists have had to bear in mind the unloved section 93 of the RPA which, in effect, barred reports about a constituency unless all the candidates consented to the item being broadcast. But section 93 has gone, abolished and replaced by each Broadcasting Authority’s code of practice.
The new ITC Code – conveniently in place from April this year – introduced 4.3(i) and it is no longer necessary to secure the agreement of all candidates for any candidate to take part in an item about the relevant constituency, but broadcasters are still required to maintain due impartiality in coverage of the campaign at constituency level. In this election, it meant that the candidates of each of the major parties should be offered the opportunity to take part but with an editorial discretion as to how much time was given to each of the parties. Where appropriate, less mainstream organisations such as the Greens, anti-European groups and one-issue candidates could be interviewed and have their say on local issues.
After the close of nominations, any constituency TV report had to include a list of all candidates standing, giving first names, surnames and any party allegiance. This list could be conveyed by caption rather than voiceover.
The end of section 93 should have allowed broadcasters to report on significant constituency matters, free from censorship by one obstinate candidate. The BBC and the Radio Authority also provide similar guidance to journalists.
All these rules did not, of course, stop candidates from thumping voters.
And to think they once kissed babies.
Duncan Lamont is a partner in the media team at Charles Russell
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