The 2024 UK General Election has started and the voting public is now being bombarded with political campaign messages. More than ever, communications will be sent to us online, as part of what political parties call the "air war".
Campaign messages will come not only from the "official" campaigns and their supporters but also from other vested interests, and from each other. Voters find it increasingly difficult to know whether political statements made online are truthful, and cynicism about political campaigning is high.
As a general rule, the UK Courts are reluctant to interfere with political campaigning, in the interests of protecting freedom of speech. Nevertheless, there are limits to what can be said online and anyone thinking of throwing in their two cents about candidates in the 2024 General Election should know about the serious risks, including criminal offences, that can result from misuse of social media during the campaign.
Here, we consider a small part of the legal landscape, by examining two overlapping legal mechanisms: the law of defamation and section 106 of the Representation of the People Act 1983 (the "RPA 1983"), to see how electoral integrity and democratic liberty are balanced in the UK.
Defamation
Defamation cases in England and Wales are governed by (amongst other things) the Defamation Act 2013; in Scotland, it is the Defamation and Malicious Publication (Scotland) Act 2021. Although different laws, both the English and Scottish causes of action are designed to remedy serious harm caused by published false statements. While defamation is not limited in its scope to election campaigns, it is certainly possible for false statements made during an election campaign to be actionable.
Moreover, as colleagues have noted recently regarding the case of Blake and Seymour v Fox [2024] EWHC 956 (KB), defamatory statements made online to a mass audience can lead to serious harm and a substantial award of damages.
However, claims during election campaigns against those seeking election are atypical. Even though false messages about a political opponent may be serious and widespread (and so meet the threshold for serious harm), in deciding such cases, judges have to counterbalance the public interest in promoting public debate and scrutiny. Indeed, defendants in such cases will routinely rely on the public interest defence, such as that provided by s. 4 of the English Defamation Act.
As a result, political parties and campaigning organisations generally cannot brings claims for defamation. This principle is set out in the case of Derbyshire CC v Times Newspapers Ltd [1993] A.C. 534, in which Lord Keith held "it is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism".
This principle has been extended to political parties, whose defamation claims are also liable to be struck out. This happened to a claim brought by the Referendum Party following the 1997 UK General Election (Goldsmith v. Bhoyrul (1998) QB 459). In that case, Buckley J ruled that, insofar as the Referendum Party sought to bring a claim, "the public interest in free speech and criticism in respect of those bodies putting themselves forward for office or to govern is also sufficiently strong to justify withholding the right to sue".
By contrast, individuals can sue in response to defamatory statements made about them during campaigns. As such, anyone with a large online following should think carefully before publishing statements that they know to be untrue online about individual candidates.
The Representation of the People Act 1983
Defamation is a civil cause of action that can be deployed at any time, regardless of whether an election campaign is taking place. But the UK also has specific legislation governing the conduct of campaigns at election time. This includes the RPA 1983, section 106 of which seeks to limit the publication of falsehoods about candidates during campaigns.
In particular, under section 106 of the RPA 1983, it is an offence to make false statements about the "personal character or conduct" of candidates "before or during" a parliamentary election campaign. While there is some overlap with this offence and (the tort of) defamation, there are some key differences too.
To commit the offence, a defendant needs to be shown to have made false statements about a candidate's "personal character or conduct". As shown in the recent case of Buchan v Elliott (2022) EWHC 255 (QB), which came about following the 2021 UK local elections, false statements about a candidate's political conduct (e.g. how they vote) is insufficient to overturn an election result, and campaign materials, online or not, will often criticise an opponent's political conduct. To be an offence, there must be a personal falsehood, intended to undermine (for example) their integrity or honesty (the distinction is, of course, a blurry one, and the divide between the political and the personal is likely to be much litigated in such cases).
Moreover, the false statements must have been made "for the purpose of affecting the return of any candidate at the election". That is to say, they must intend to influence the outcome of an election. Whoever makes the statement will have a defence, however, if they can show that they believed the statement to be true, and had reasonable grounds for doing so.
The Court can deploy a range of remedies in the event that the s.106 offence is committed. This includes injunctive relief, the power to declare an election result void, and to bar individuals from standing for office. Remedies are pursued by way of Election Petition, which must be presented very soon after the result is returned (21 days in most cases, with extra time available if illegal practices or corruption are alleged).
A powerful reminder of the extent of the remedies available was demonstrated in Watkins v Woolas [2010] EWHC 2702 (QB) a case which followed the 2010 UK General Election. The Labour Party candidate for Oldham East and Saddleworth, Phil Woolas, won the constituency by just 103 votes. An Election Court later found him to have knowingly lied about the Lib Dem candidate, Elwyn Watkins (who came second in the race). The result was declared void, leading to a by-election in December 2010, in which Mr Woolas was barred from standing for any public office for three years.
Overlap between Defamation and the RPA Offence
If cases under s.106 of the RPA 1983 are rare, cases featuring both the s.106 offence and defamation are rarer still.
Nonetheless, at the last UK General Election, in 2019, Jo Swinson, the Lib Dem candidate for East Dunbartonshire (as well as, then, the leader of the Liberal Democrats) successfully applied to the Scottish Court of Session for an injunction preventing publication of SNP campaign literature, which alleged that she had hypocritically taken a £14,000 donation from a fracking company, despite campaigning to tackle climate change. Ms Swinson claimed the literature was both defamatory and a breach of the RPA 1983.
The Court allowed her application, finding the statement to be "false in substance and materially inaccurate", which would tend to "make electors think worse of her", and would "lower her reputation in the estimation of reasonable readers" (thus meeting the threshold for defamation in Scottish law). At the same time, it was found to "reflect adversely on Ms Swinson's character or conduct", indicating a prima facie breach of s.106 of the RPA 1983.
In Ms Swinson's case, the Court of Session's injunction prevented publication of the falsehoods before the election took place. She went on to narrowly lose her seat to the SNP candidate and resigned as leader of the Lib Dems.
However, it is conceivable that, had Ms Swinson continued her case after the election was decided, she could have sought civil remedies for defamation and/or pursued an Election Petition, seeking remedies under the RPA 1983.
Ultimately, though, whether to take legal action after an election will be not only a legal determination for candidates and parties, but a political one. Ms Swinson, it seems, opted not to pursue the case further.
Conclusion
Democratic freedoms to criticise political opponents are important and the internet empowers ordinary people to publish their views to a mass audience. Although anyone can post online, and anyone can read what is published, how much time does anyone really spend writing a Tweet?
In reality, online statements are often less considered than official campaign literature, despite the enormous traction they can receive. Nevertheless, the same legal principles apply to social media as to campaign pamphlets.
Candidates and their supporters should carefully consider the accuracy of their online posts, particularly if published to wide audiences as failure to take care could lead to serious consequences, and even see an election result overturned.
