Going too far in general election campaigning can be costly
General Election campaigns are heated occasions. Passions run high and mud is slung. Often enough, the mud doesn’t stick - but when it does it can cost a lot more than a dry-cleaning bill.
Phil Woolas, the Labour MP for Oldham East and Saddleworth since 1997, learnt this the hard way when, in 2010, he attacked his Liberal Democrat challenger, Elwyn Watkins. Woolas made a number of claims in election leaflets and mocked-up newspapers, including that Watkins had tried to woo the vote of violent Muslim extremists, and that he had refused to condemn threats of violence against Woolas. Initially, Woolas’ tactics seemed to have worked: he won the election by 103 votes. It proved to be a pyrrhic victory. Woolas was later found by an election court to have fallen foul of the Representation of the People Act 1983, which makes it illegal to make false statements of fact about a candidate. The election result was declared void, and Woolas was disqualified from standing for Parliament for three years.
Woolas’ case is an unusual one but it shows the extremes to which candidates may go in election campaigns. With no party conclusively in the lead, this May’s result is likely to depend on a number of fierce local battles and pressure is building in many constituency campaigns, particularly the toughest marginal seats. Already we’ve seen one skirmish, with Rotherham’s three Labour MPs saying they would sue two UKIP politicians, an MEP and local councillor, for comments made at a UKIP conference and in a news interview. The backdrop is twofold: dislike of what’s been said, certainly, but likewise Labour’s fear of a UKIP win in South Yorkshire.
What, though, does the law say about political attacks?
The Defamation Act 2013, which came into force at the start of 2014, has tilted the law in favour of free speech. Claimants now have to show that what’s been said or written about them has caused “serious harm” to their reputation. The bar is high but many political publications make serious allegations about the reputation of candidates by attacking their personal honesty, credibility and behaviour.
Whether such attacks will end up in court depends on their virulence, the potential availability of various defences, and appetite. No one should have to put up with a vicious, baseless attack – as Benjamin Franklin famously, and accurately, said: “It takes many good deeds to build a good reputation, and only one bad one to lose it”. Candidates who see their reputations going up in smoke because of foul play by a rival may want to fight back in non-litigious ways, not least because they may prefer to concentrate on the election rather than ring up their lawyers, but they have legal options, too.
Suing for libel is one option, and no win, no fee conditional fee agreements are available for defamation cases, so too after-the-event insurance against the costs of losing.
There are, of course, defences to a defamation claim. A key one both for politicians and for the media covering the election is the public interest defence. This applies if the statement complained of – whether of fact or opinion – was made on a matter of public interest, and the publisher reasonably believed that publishing the statement was in the public interest. There is also a wider power than ever before for the media to report on political disputes without having to verify whether the allegations made by each party are true. This, and the defence of honest opinion, may also be relevant.
Another option, in the case of broadcasters, is a complaint to Ofcom. Broadcasters are subject to stringent rules about bias, meaning that TV programmes cannot be unbalanced or unfair.
The law also gives candidates for election a very powerful tool in the form of an injunction under the Representation of the People Act. This inverts the general principle against prior restraint. Unless it is clear that a libel defendant will be unable to defend a claim at trial, the court will refuse to grant an injunction so that publishers can “publish and be damned”.
In contrast, it may well be possible to obtain an injunction under the Representation of the People Act. The Act provides that if false statements are made in relation to the personal character or conduct of a candidate before or during an election for the purposes of affecting the return of any candidate at the election, the court may grant an injunction preventing any repetition, provided the claimant can give prima facie proof of the falsity of the statement. What that means in practice is that there’s a much lower threshold for claimants to meet than in normal defamation proceedings. It’s possible, under this legislation, for candidates to prevent the repetition of the libels or slanders until after the election has been held, or even potentially on a permanent basis.
In all, candidates should think hard about bringing defamation or RPA proceedings during an election, where the scope for free speech and debate is at its widest. But should the line between healthy criticism and unhealthy defamation be crossed, legal redress exists to vindicate damaged reputations.