political

Publishing exit polls in advance is banned – and that covers retweeting how someone voted

Polling station signs

Section 66 of the Representation of the People Act 1983 often gets an outing around this time of year as someone gets in trouble for publicising figures from a postal vote opening. (Short version: don’t go to a postal vote opening and then publish figures or claims about who is winning or losing.)

By now, that’s a fairly familiar story – although the ability of new people to make the same mistakes as others have already made in the glare of publicity is such an inherent part of human nature I wouldn’t bet on it not happening again.

But there’s also another, less common, mistake people may make, especially those armed with social media accounts or social media monitoring tools, for Section 66a includes a ban on exit polls:

66A Prohibition on publication of exit polls

(1) No person shall, in the case of an election to which this section applies, publish before the poll is closed–

(a) any statement relating to the way in which voters have voted at the election where that statement is (or might reasonably be taken to be) based on information given by voters after they have voted, or
(b) any forecast as to the result of the election which is (or might reasonably be taken to be) based on information so given.

(2) This section applies to–

(a) any parliamentary election; and
(b) any local government election in England or Wales.

(3) If a person acts in contravention of subsection (1) above, he shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding six months.

(4) In this section–

“forecast” includes estimate;

“publish” means make available to the public at large, or any section of the public, in whatever form and by whatever means;

and any reference to the result of an election is a reference to the result of the election either as a whole or so far as any particular candidate or candidates at the election is or are concerned.

(This provision has also been applied to other contests, including Police and Crime Commissioner elections and the 2016 European referendum.)

Note carefully the wording of 1(a). It doesn’t stop an individual* saying on polling day (or indeed after receipt of a postal vote), “I’ve just voted Lib Dem”. Indeed:

But search social media to gather up all those mentions and publish a tally of which party is getting the most such declared votes? That’d be a “statement relating to the way in which voters have voted at the election where that statement is (or might reasonably be taken to be) based on information given by voters after they have voted”. And so that’d also be a breach of the law.**

Dangerous territory too for someone to retweet or otherwise reshare messages from other people in which those other people say how they have voted. Because that too would be making a “statement relating to the way in which voters have voted at the election where that statement is (or might reasonably be taken to be) based on information given by voters after they have voted”.***

 

* An individual is safe. But a tweet about “my partner and I have just…”? Not so safe even if it is hard to see how the CPS would view it as something to proceed to a prosecution over unless there are unusual circumstances

** However, as Matrix Chambers has pointed out previously, you might have some fun with an appeal under the European Convention on Human Rights and its free speech provisions.

*** Would the authorities decide to proceed with a prosecution? There aren’t test cases or test decisions really to guide in judging this, but it’d be unwise therefore to gamble with the hope that the police or CPS decide not to be bothered about this law, especially if someone is doing it on a large scale or systematically.

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