While it may appear that political parties, candidates and other campaigners are locked in an uninhibited battle for the hearts and minds of the nation, those wanting to make their voices heard prior to polling day are subject to an array of rules that regulate the business of campaigning generally and campaign materials in particular.
Election law seeks to strike a balance between giving interested parties freedom to express their views while trying to limit anything that’s likely harm the democratic process.
An important feature of this is limiting campaign spending to create an even playing field. The Political Parties, Elections and Referendums Act 2000 (PPERA) and Representation of the People Act 1983 (RPA) cap spending by political parties (nationally), candidates (at a constituency level) and for third parties (including individuals, companies, charities and trade unions) in connection with promoting, procuring or prejudicing electoral success during a regulated period prior to an election.
Materials such as leaflets, ads or websites must show who is responsible for the production of that material; this ‘imprint’ helps to ensure there is transparency about who is campaigning. While these rules do not apply to online content, the Electoral Commission suggest it is best practice to includes an online imprint and stress that digital content which can be downloaded for printing and display must include an imprint.
There are also rules to prevent confusion in relation to campaign material, for example by disguising their advertising to look like that of another party. Also, campaign material should not resemble a polling card.
While election candidates are not afforded special privilege, the courts are keen to protect free speech at election time.
But there are limits. In addition to defamation and malicious falsehood, it is a criminal offence under RPA to make a false statement of fact (as opposed to opinion) about a candidate’s personal (as opposed to political) character or conduct, unless the maker can show they had reasonable grounds for believing and did believe the statement to be true.
Identifying what is personal as opposed to political is not always easy, and the consequence of a finding of guilt can be dramatic. Phil Woolas MP lost his seat after the 2010 election when he was found guilty of making false allegations that his opponent had courted the votes of Muslim extremists advocating violence in order to secure political advantage; and Lutfur Rahman lost his position of Mayor of Tower Hamlets in part as a result of being found (through his agent) to have falsely accused his Labour rival of being a racist in the 2014 campaign.
It is an offence to publish threatening or abusive material that is intended to stirring up hatred against people on the grounds of race or religion; and it is still (under the RPA) an offence for the clergy of any religion to use the power and influence of religious office to convince the faithful that it is their religious duty to vote for or against a particular candidate.
Rupert Earle is a partner and Ayden Peach is a paralegal at Bates Wells Braithwaite
More election 2015…
On the campaign trail
- The legal profession’s MP hopefuls
- Meet the Hogan Lovells NQ who’s standing for Parliament
- Are televised debates between party leaders a good thing?
At the ballot box
The lawyers’ perspective
- Law less ordinary: meet the lawyers who act for political parties
- Election 2015: a human rights lawyer’s take
- Election 2015: a private wealth lawyer’s take
- Election 2015: a finance lawyer’s take
- Election 2015: an immigration lawyer’s take
- Election 2015: a planning lawyer’s take
- Election 2015: a healthcare lawyer’s take