“I don’t have to win”, Maurice Saatchi supposedly once said, “I just have to make you lose”. In political advertising, this attitude shows no sign of going out of fashion. Ads attacking political parties and their leaders are commonplace, and in the heat of battle the pleas of the Committee on Standards in Public Life for a clean election campaign and the prayers of the Archbishops of Canterbury and York that campaigners act with “respect for one another, good grace and a commitment to truth and integrity” may fall on deaf ears.

Such ads are not covered by the self-regulatory system administered by the Advertising Standards Authority, and while an attack ad in a national campaign may well invite controversy (indeed, this is often the point), it will seldom be open to legal challenge if it is not malicious (in the legal sense) or defamatory. However, ads attacking individual candidates may carry special legal risk if they cross the line into discussion of a candidate’s personal (as opposed to political) character or conduct. As campaigners and candidates start work, where is that line to be drawn?

Section 106 of the Representation of the People Act 1983

Section 106 makes it a criminal offence to publish, before or during an election and with the purpose of affecting the return of any candidate, a false statement of fact in relation to that candidate’s personal character or conduct, unless the person can show that they had reasonable grounds for believing and did believe the statement to be true. Anyone falling foul of section 106 can be restrained by an injunction (including on application by the returning officer) from the High Court from repeating the offending statement (a remedy not available in defamation where the statement is to be defended as true), they can be fined, disqualified from being a candidate for 3 years, and the election result can be overturned.

The Woolas case

Disqualification and a new election was the dramatic outcome in R (on the application of Woolas) v The Parliamentary Election Court [2010] EWHC 3169 (Admin). Leaflets distributed on behalf of former Labour immigration minister Phil Woolas alleged that his Liberal Democrat rival had called for a ban on arms sales to Israel but not to Palestine in order to encourage violent extremist Muslims to vote for him; had not rejected the endorsement of extremist Muslim groups that had made death threats against Woolas and had refused to condemn the threats in a “pact with the devil”; and reneged on his promise to live in the constituency. All those allegations were false, some evidently so from a quick Google search.

The High Court, mindful of the restriction imposed by s106 on a candidate’s right to freedom of expression (under Article 10 of the European Convention on Human Rights) at election time, and the fact that it imposes liability for false statements made carelessly (as well as dishonestly), sought to give some guidance on when a statement relates to a candidate’s personal character or conduct (the truth or falsity of which would be more difficult for electors to discern) and when it relates to their political conduct (it cannot be both):

  1. Statements about a candidate’s family, religion, sexual conduct, business or finances for example, are generally likely to relate to their personal conduct.
  2. Statements which relate to a candidate’s political position but make an implied point about their character which (if not made in the context of a political position) might impugn them personally – for example, a statement about a candidate’s political views implying that they are a hypocrite or untrustworthy for holding them, or have failed to keep to policy pledge – are part and parcel of political debate and not caught by s106.
  3. Statements about a candidate’s political position which nonetheless go beyond that and become a statement about personal character or conduct because of their gravity, such as an allegation of condoning serious criminal conduct, or of corruption which involves personal dishonesty and criminality accusing a candidate of corruption, are caught by s106.

The Cooper case

The Court sought to apply the Woolas case guidance in Cooper v Evans and another [2023] EWHC 2555 (KB). Mr Cooper, the Conservative candidate in last year’s by-election in Tamworth, applied for an injunction under s106 restraining publication of an ad run by the West Midlands Labour Party. The ad on Facebook and Instagram depicted Mr Cooper with Eddie Hughes MP, who prior to the by-election had already been selected as the Conservative candidate for Tamworth in the next general election.

The court found that the meaning of the ad was that Mr Cooper had agreed, if elected in the by-election, to stand down before the general election and make way for Mr Hughes. This would entitle him to the £29,000 payment made to retiring MPs. The ad did not allege corruption or bribery: at its highest, it suggested that Mr Cooper and Mr Hughes had made a secret arrangement of dubious merit whereby Mr Cooper would accept the taxpayer-funded payoff as the price for making way for Mr Hughes next year. The Court concluded that this was a statement of fact rather than opinion, and that it was false (and Labour told the Court that it would not be republished), but that the ad primarily concerned Mr Cooper’s present and future political aspirations in relation to Tamworth, which constituted a political position. While it did carry an implication relevant to his personal character (that he was untrustworthy or dishonest), this arose because of the political position he was alleged to have taken. Mr Cooper’s application was refused.

It is apparent that the more serious an allegation that could be either “personal” or “political”, the more likely it is to be treated as on the “personal” side of the line and caught by s106. But the line is not easy to draw. An allegation of corruption for example need not necessarily involve criminality – conduct can be morally corrupt.

Defamation

If things do go wrong, even if the candidate is not on the receiving end of a s106 application, they (or their party or election agent) may become the defendant in a defamation action. In Monir v Wood [2018] EWHC 3525 (QB) the Chairman of the Bristol branch of UKIP was held liable to pay £40,000 in damages for a tweet by the branch vice-chair (known to be a loose cannon), wrongly picturing Mr Monir as standing beside the Labour candidate for Rotherham and describing him (entirely falsely, it transpired) as a “suspended child grooming taxi driver”. And in Barron and Healey v Vines 2016 EWHC 1226 (QB) and Barron, Healey and Champion v Collins [2017] EWHC 1226 (QB), Labour MPs were awarded damages totalling £80,000 and £162,000 respectively against an ex-UKIP Councillor and UKIP MEP for allegations in a TV interview and at a UKIP party conference (broadcast live) that these Labour MPs knew of the prolonged sexual exploitation of children in Rotherham but did nothing about it. Steps taken by UKIP and their candidates to avoid adverse judicial findings at inconvenient times in the electoral cycle simply pushed up the damages and cost figures.

Where possible, candidates and campaigners should focus on the issues rather than the individual. If they do focus on the individual the election agent should do their research carefully, and document that they have done so. Any critical statements should be clearly tied to candidates’ political positions and avoid accusations of criminality – unless, of course, those accusations happen to be true.

If you have any queries or issues about political or campaign advertising during the general election, please contact Rupert Earle and Stanley Carrodus.

The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further information.