Election 2017: free speech v fake news

Freedom of expression is vital to the health of a democracy, and so political speech receives a high level of protection under Article 10 of the European Convention on Human Rights, and Parliament and the Courts take a light touch approach.

What, then, of ‘fake news’? Are there limits to this freedom when the circulation of untrue information may distort the electoral process?

TV, propaganda, fake news, television, mediaIdentifying the author

Election law requires that any material in a newspaper or periodical that can reasonably be regarded as intended to promote or procure electoral success at an election for a party or candidate must include the name and address of the person on whose behalf the material is being published. The Electoral Commission takes the view that the requirement applies to websites and electronic material and social media.

Political advertising

The Advertising Standards Authority’s remit does not extend to material intended to influence voters at election time, and whilst the Electoral Commission regulates election spending, it does not seek to interfere with factual content.

Seeking to verify factual claims in a short pre-election period would be challenging, and it is left to voters, who may be disinclined to vote for a party later perceived as being responsible for undelivered promises.

Political advertising on TV and radio is however prohibited (save for limited party political election broadcasts), on the grounds that allowing those well-funded enough to pay for access to the airwaves would distort the democratic process and debate.

Personal attacks on election candidates

It is a criminal offence, under the Representation of the People Act 1983, to make or publish a false statement of fact (as opposed to opinion) about the personal (as opposed to political) character or conduct of an election candidate if the purpose is to affect how many votes that person will get. It is a defence for the person making the statement to show they had reasonable grounds for believing and did believe it to be true.

The consequence of a finding of guilt can be dramatic. In 2010, Labour MP Phil Woolas lost Oldham East after the Court held that he had knowingly making false statements to the effect that his Liberal Democrat opponent had courted the votes of Muslim extremists advocating extreme violence, and thus condoned criminal conduct.

An allegation that an opponent had reneged on a promise to electors (e.g. to move to the constituency) or was wooing the extremist vote, would be about the opponent’s political position rather than his personal character; but allegations of condoning criminal conduct were about a candidate’s personal character. Similarly Lutfur Rahman lost his position as mayor of Tower Hamlets in 2015, in part for having falsely called his opponent a racist.

Defamation and politicians

Individuals (including politicians) and corporate entities may sue in defamation if they are the subject of a publication to third parties that causes serious harm to their reputation (or serious financial loss, in the case of bodies trading for profit). Central and local government bodies and political parties are not permitted to bring such claims. Those defending defamatory statements made at election time will need to rely on the defences available to any other defendant – truth, honest opinion, a statement in the public interest, or one protected by privilege.

The courts give greater latitude to political speech. Thus in Waterson v Lloyd and Another (2013), the former Conservative MP for Eastbourne sued the sitting Liberal Democrat MP and his agent for distributing election material describing the claimant as an ‘expenses scandal MP’ for claiming over £70,000 for mortgage payments on a family home around 60 miles from his constituency.

The Court of Appeal held that the allegation of a scandal was honest opinion, noting that ‘the limits of acceptable criticism are wider in relation to politicians acting in their public capacity than in relation to private individuals’.

However, there is in general no special privilege afforded to politicians. In February 2017, UKIP MEP Jane Collins, who had previously admitted “I’m a bit hot headed sometimes”, was ordered to pay a total of £162,000 in damages for defamation to Rotherham’s three Labour MPs for alleging at a UKIP conference that each of the MPs knew details of the town’s child abuse exploitation yet chose not to intervene, allowing the abuse to continue and were therefore just as culpable as the perpetrators.

The EU Parliament dismissed her attempt to invoke protection under EU law for opinions expressed in the performance of an MEP’s duties, and the High Court subsequently noted that she had failed to apologise promptly, had caused a cascade of abuse on social media, and had attempted unsuccessfully to defend the allegations as opinion.

Many now rely on social media for their news, and the law applies there too – so the Court recently ordered Katie Hopkins to pay Jack Monroe £24,000 in damages for accusing her in two tweets of condoning the vandalising of war memorials following the 2015 election.

Rupert Earle is a partner and Ross Allan is an associate at Bates Wells Braithwaite