May 2003 Legal Implications
for
Broadcasters Representation of the People Act 1983
Broadcasters have a far more restricted and stringent practice to follow in the run up to general elections. Where newspapers and print journalists have right effectively to be partial subject to Section 106 of the Representation of People Act 1983 and the laws of defamation, broadcasters must follow a far stricter line and ensure at all times that they are impartial and inclusive when reporting the general election.
This covers news coverage political analysis and party political broadcasts.
Until very recently, a possible tighter control was placed on broadcasters by Section 93 of The Representation of the People Act 1983 which effectively acted as a veto by candidates against the broadcasters. The Broadcasters will be pleased to know that this has now been amended by The Political Parties, Elections and Referendums Act 2000, effectively removing that right of veto.
The Representation of the People Act 1983 and the Broadcasting Act 1990 are still the foundation stones for the laws concerning the Broadcasting of Elections. One must also now of course be aware of the Political Parties, Elections and Referendums Act 2000.
However the whole thrust of the law is that broadcasters will effectively be governed by the regulatory authorities and in the case of Scottish TV, that of course is the Independent Television Commission (ITC) a copy of the relevant section of the code is attached to this paper. It is imperative that we are all familiar with its content.
Until 2001, the controls for elections were set out in legislation. They operated fairly primitively. It was unlawful for example in an election campaign to include a programme about a constituency in which the candidate appeared on film in an election broadcast and in which the candidate gave his or her consent. That effectively gave candidates the power to control the editing of their contribution by threatening to withdraw their consent if they did not like what they saw. Worse, all the candidates in the constituency had to consent to the programme. This power of veto operated undemocratically. The two legal cases of Bernadette McCaliskey and Marshall v BBC had no doubt played their part in bringing about a change in the law.
Bernadette McCaliskey complained that the BBC had divided a candidate’s programme into two parts and that she had been placed with “minor” candidates who were given less airtime. The Judge thought the division was fair but acknowledged that the BBC had to obtain her consent or scrap the programme. The candidates’ veto meant effectively in practice that sitting MP’s who decided that they had nothing to gain by appearing would refuse to appear or to consent to the programme going ahead without them. It was considered that the consequences of either the sitting MP or a minority candidate having a right of veto was wholly unacceptable and that the voting public in a democracy should be entitled to see the candidates for local and national elections arranged against each other, and local radio and televisions stations perform a public service by setting up such debates.
The case of Marshall v BBC was also relevant. Here the Court held that a candidate James Marshall had not taken part since there had only been pictures of his canvassing. The programme did not, therefore, require consent before being broadcast. The provisions of Section 93 were not made in the secondary legislation governing elections to the Scottish Parliament in 1999, presumably because of the list system, which operates in Scotland. The government explained at the time that it was impracticable in the content of party list elections to apply section 93. However it was reiterated that broadcasters would therefore be simply bound to fulfil normal requirements of fair and balanced coverage in reporting particular constituency or regional contests. Perhaps it was looking again at Section 93 in the context of a list system that persuaded the government to look at Section 93 all together and decided that it was outdated. It’s original aim i.e. to protect minority interested candidates, was effectively being undermined.
Section 93 of The Representation of the People Act 1983 now reads as follows:-
93(1) each broadcasting authority shall adopt a code of practice with respect of the participation of candidates at a parliamentary of local government election in items about the constituency or electoral area in question which are included in relevant services during the lection period.
(2) the code for the time being adopted by a broadcasting authority under this section shall be either –
(a) A code drawn up by that authority, whether on their own or jointly with one or more other broadcasting authorities, or
(b) A code drawn up by one or more other such authorities; and a broadcasting authority shall from time to time consider whether the code for the time being so adopted by them should be replaced by a further code falling within paragraph (a) or (b).
(3) before drawing up a code under this section a broadcasting authority shall have regard to any views expressed by the Electoral Commission for the purposes of this sub section; and any such code may make different provision for different cases.
(4) the Independent Television Commission and the Radio Authority shall each do al they can to secure that the code for the time being adopted by them under this section is observed in the provision of relevant services; and the British broadcasting corporation and Sianel Pedwar Cymru shall each observe in the provision of relevant services in a code so adopted by them.
(5) for the purpose of sub section 1 “the election period”, in relation to an election, means the period beginning- a (of a parliamentary general election) with the date of the dissolution of parliament or any earlier time in which her Majesty’s to dissolve parliament is announced –b (if a parliamentary by election with the date of the issue for the writ for the election or any earlier date in which a certificate of the vacancy is notified in the London Gazette in accordance with the Recess Elections Act 1975 or c (if a local government election) was the last date for publication of notice of the election and any with the close of the poll.
(6) In this section-“Broadcasting Authority” means the British Broadcasting Corporation, the independent television commission, the radio authority or the Sianel Pedwar Cymru;
“candidate” in relation to election, means a candidate standing nominated at the election or included in the list of candidates submitted win connection with it; “relevant services”-(a) in relation to the British Broadcasting Corporation are Sianel Pedwar Cymru, means services broadcast by that body; (b) in relation to the Independent Television Commission, means services licensed under part of the Broadcasting Act 1990 or part 1 of the Broadcasting Act 1996; and (c) in relation to the radio authority, means services licensed under part 3 of the Broadcasting Act 1990 or part 2 of the Broadcasting Act 1996.
The broadcasting regulators are now required to draw up their own code of practice with the respect to the participation of candidates at a parliamentary or local government election in items about the constituency during the election period. That is appended hereto. In drawing up their codes, The Broadcasting Authorities must have regard to the views of the electoral commission.
Balance
The ITC is under a duty to do all it can to ensure that “due impartiality” is preserved on the part of persons providing services respects matters of political controversy or relation to current public policy, by the Broadcasting Act Section 6. By self-denying assurances, the BBC accepts similar standards.
Balance can be achieved through a series of programmes, but at election time, broadcasters are super sensitive to the charges of biased. In the run up to the 1987 elections, for example, the BBC turned down a play that depicted Mrs Thatcher behaving heroically and compassionately during the Falklands war. In 1964, the BBC agreed to move Steptoe and Son from peak time on polling day at the request of Harold Wilson who had feared it would keep Labour voters at home. The BBC declined his further suggestion to “replace it with a Greek drama, preferably in the original”.
Party Political Broadcasts
A limited number of Party political broadcasts are allowed each year on all channels, determined by the Party Political Broadcast Committee, PPBC, comprising representatives from the BBC and ITC together with they major parties chaired by the Lord President of the Privy Council. Airtime is passed out according to seats held in parliament and performances at recent polls, although no definitive formula has been adopted. Party Political Broadcasts during election periods have become an influential part of the democratic process. In 1987 Hugh Hudson produced a remarkable propaganda film that boosted Neil Kinnock’s personal rating by 16% overnight, while the Tory’s counter attacked with a theme tune specially composed by Andrew Lloyd Webber. These broadcasts too, are allocated by the Party Political Broadcast Committee; by tradition, the opposition has a penultimate on the broadcast on the government is the very last one before the election. These arrangements have worked satisfactorily for the major parties (and especially Liberal Democrats who’s appeal to the Broadcasting Executives is always much higher than it is for the election) decision in 1974 to give one propaganda slot to every party failed in more than 50 candidates lead to an inevitably controversial broadcast by the national front.
At the 1997 general election, the referendum party challenged these criteria of the basis that they discriminated against new parties, such as them which is fielding in almost constituency. It had been allocated one five minute broadcast whereas the Conservatives and Labour parties had five ten minute slots and the Liberal Democrats had four ten minute programmes. The application failed. The Court showed a similar difference to the judgement of the BBC when faced with a challenge from the pro life alliance, who’s party political broadcast had rejected as unacceptable on taste and decency grounds. The programme had included shots of aborted foetuses, many of which were mutilated. This Court held that an arguable ground under the European Convention of Human Rights could apply to such unduly offensive material. Generally the Courts will be reluctant to interfere with decision of broadcasters at the times of elections.
Section 36 in the 1990 Broadcasting Act empowers the ITC to require licence holders to carry party political broadcasts on ITV, channel 4 and channel 5 and permits the ITC itself to determine which political parties should be allowed such broadcasts, how often and for how long. Before making rules for purposes, the ITC must have regard to the views of the electoral commission. The Broadcasters can in any case only allow registered parties to make party political broadcasts during referendum campaigns, only organisations which have been formally designated by the electoral commission.
Ministerial broadcasts can be permitted on matters of National importance, which may range from a declaration of work to emergency arrangements for coupling with a drought. So long as there is general consensus in the subject matters broadcast, no legible reply will be given to the opposition. Where there is, however, an element of part of then controversy in the ministerial broadcast, the opposition must be given equal time to broadcast a reply. That may well arise in the current Iraq crisis. Section 10 of the Broadcast Act plays a statutory duty on the ITC to comply with a minister of the crown requiring to direct licence holders to publish an official announcement “with or without visual images”. Licence holders will be contractually bound to comply with such a direction, but they may reveal their direction’s existence to their views.
Access to meetings
At election times, schools and public meeting rooms have to be made available to candidates so that they can promote their campaigns. Consistent with this objective, a candidate can book one or two only for a public meeting. Or popular or controversial candidate may not be able to accommodate every member of the public who would like to be there. But as another context, it is difficult to see how or meeting could be correctly described as “public” for the press we are actively excluded. Journalists who are ordered to leave election meetings by organisers unhappy with press coverage should insist in their right to remain. If forcibly ejected, they could obtain damages for assault.
Exit Polls
The Representation of the People Act 2000 introduced a prohibition on the publication of exit polls before the official polls closed. The prohibition relates to any statement regarding the way in which voters have voted at a parliamentary or government election where that statement might reasonably be taken to be based on information given by voters after they have voted. Forecasts of the results which are also based (or might reasonably be seen to be based) on such information are also prohibited. Publication in breach is a summary offence with a maximum penalty of a fine on level 5 (£5,000.00).
For Further Information Contact olur Media Law Team
Peter Watson : David McKie : Angela McCracken
Tel: 0141 307 2311 Fax: 0141 307 1005
Email : peterwatson@lemac.co.uk
19 March 2003
Codes & Guidance Notes
Programme Code
Section 4: Party Political and Parliamentary Broadcasting
4.1 Party Political and Party Election Broadcasts
Section 36 of the Broadcasting Act 1990 requires the ITC to ensure that Party Political Broadcasts (PPBs) are included in the regional Channel 3 (ITV), Channel 4 and Channel 5 services. This section of the Code reflects the rules which the ITC has determined in accordance with the Act. Within the terms of these rules, the precise allocation of broadcasts is the responsibility of licensees. Unresolved disputes between licensees and any political party, as to the length, frequency, allocation or scheduling of broadcasts, should be referred by the party or the licensee to the ITC.
4.1(i) Length of broadcasts
Parties may choose a length of 2'40", 3'40" or 4'40".
4.1(ii) Frequency of broadcasts
General election broadcasts will be carried by Channel 3 (ITV), Channel 4 and Channel 5. Broadcasts for the European Parliamentary election will be carried by ITV and Channel 5.
ITV will additionally carry: local election broadcasts in those regions where such elections are taking place; broadcasts in the relevant regions for Scottish Parliament, Welsh Assembly and Northern Ireland Assembly elections; and broadcasts for the major parties around other key events in the political calendar, such as the Queen's Speech, the Budget and party conferences. Major parties in Great Britain are defined as Labour, Conservative, Liberal Democrats and, in Scotland and Wales respectively, the SNP and Plaid Cymru.
4.1(iii) Allocation of broadcasts
Major parties in Great Britain will normally be offered a series of broadcasts before each election.
Other parties may qualify for a broadcast on the basis of contesting one sixth or more of the seats up for election, modified as appropriate for proportional representation systems.
Major parties in Britain will be offered one broadcast on each occasion, in relation to other key political events.
The allocation of election broadcasts to Northern Ireland parties will be determined before each election by the relevant licensee.
4.1(iv) Scheduling of broadcasts
Election broadcasts by the Conservatives, Labour, the Liberal Democrats and Northern Ireland parties must be carried in peak-time (6pm to 10.30pm). SNP and Plaid Cymru broadcasts on ITV in Scotland and Wales must also be carried in peak. Other broadcasts should normally be carried in the period 5.30pm to 11.30pm.
4.2 Content of broadcasts
Editorial control of the content of Party Political Broadcasts (PPBs) and Party Election Broadcasts (PEBs) normally rests with the originating political party. However, licensees are responsible to the ITC for ensuring that nothing transmitted breaches the Programme Code, notably the requirements on matters of offence to good taste and decency set out in Section 1. Licensees are recommended to seek an indemnity from the parties against defamation, breach of copyright and similar legal risks. Licensees should issue parties with general guidelines on the acceptability of content (including Code compliance and avoidance of defamation), and technical matters. These guidelines, which are agreed between all relevant broadcasters, are designed to reconcile the editorial standards of the broadcaster, and audience expectations, with the freedom of political parties to convey their political messages.
4.3 Programmes at the time of elections
The general provisions of Section 3 of this Code - notably Section 3.3 on 'major matters' - apply to all coverage of elections. There is no expectation that the time devoted to all parties and candidates in an election will be equal. Licensees must exercise their judgement, based on factors such as significant levels of previous electoral support, evidence of significant current support, and the number of candidates being fielded by a party. Due weight should be given to coverage of major parties (these are defined in relation to the UK in Section 4.3(i) below). However, smaller parties and independent candidates may also be among those with significant views and perspectives, to which appropriate coverage may need to be given.
Discussion and analysis of election issues should finish when the polls open. A licensee may not publish the results of any poll it has commissioned or undertaken on polling day itself, until the polls have closed.
Appearances by candidates in UK elections as newsreaders, interviewers or presenters of any type of programme should cease for the election period (which is defined in section 4.3(i) below for Parliamentary and local governemnt elections, and is in other cases a period of one calendar month before the poll). Appearances in non-political programmes, that were planned or scheduled before the election period, may continue, but no new appearances should be arranged and transmitted during the period.
4.3(i) Coverage of constituencies at Parliamentary and local government elections in the UK
The restrictions formerly placed by the Representation of the People Act on the participation of candidates in programmes have been removed. It is no longer necessary to secure the agreement of all candidates before any candidate can take part in an item about the relevant constituency, and likely candidates are no longer prevented from taking part in the period between the calling of the election and the close of nominations. Nevertheless, due impartiality must be strictly maintained in coverage of the campaign in any constituency. If any candidate takes part in an item, about a particular consituency, then candidates of each of the major parties should be offered the opportunity to take part. The major parties in Great Britain are defined as Conservative, Labour and Liberal Democrat, and in Scotland and Wales respectively, the SNP and Plaid Cymru. The major parties in Northern Ireland are Democratic Unionist, Sinn Fein, SDLP and Ulster Unionist. It is right to make some distinction between the weight of the contribution from these candidates and others. However, constituency reports or debates should also offer the chance to take part to candidates representing parties with previous significant electoral support (for example parties which have gained seats in other recent elections, or individuals who have been elected before under a different label) or parties with evidence of significant current support.
Any constituency report or discussion after the close of nominations must include a list of all candidates standing, giving first names, surnames and any party allegiance. This should be conveyed in caption and/or voice-over.
Where a politician is appearing as a speaker on policy matters, care should be taken to avoid allowing him or her the opportunity to make constituency points, when no other candidates will have a similar opportunity.
The Political Parties, Elections and Referendums Act 2000 (see Appendix 4), defines the election period, during which the requirements in this sub-section of the Code must be applied. For a parliamentary general election, the period begins with the announcement of the dissolution of Parliament. For a parliamentary by-election, it begins with the issuing of the writ (or any earlier date notified in the London Gazette). For local government elections, it is the last date for publication of notice of the election. In all cases, the election period ends with the close of poll.
4.3(ii) Coverage of constituencies and wider electoral regions at other elections in the UK
The requirements of the previous sub-section also apply to coverage of constituencies at Scottish Parliament, and Welsh, Northern Ireland and London Assembly elections. The election period for these elections is defined as one calendar month before the poll. If coverage is given to wider electoral regions at these elections, or at the European Parliament election, the criteria outlined in Section 4.3 should be applied, in offering participation to candidates. In these instances, all parties putting up candidates in the given electoral region should be listed, in caption and/or voice-over, but it is not necessary to list candidates individually.
4.4 Use of recordings of Parliamentary proceedings
Parliamentary rules for the use of coverage of proceedings state:
a. no extracts of Parliamentary proceedings may be used in any light entertainment programme or in a programme of political satire;
b. subject to paragraph (a) above, extracts of Parliamentary proceedings may be included in broadcast 'magazine' programmes which also contain music or humorous features, provided that the different types of items are kept separate;
c. extracts from Parliamentary proceedings may not be used in party political broadcasts, except where it features a member of the party making the broadcast, and the member's consent has been obtained; the use of general scenes of either chamber or material featuring exchanges between the parties should not be included;
d. no extracts of Parliamentary proceedings may be used in any form of advertising, promotion or other form of publicity, except in the form of trailers for programmes which use extracts within the requirement of these guidelines and where the trailers also comply with those requirements; and the user shall at all times comply with all rules of coverage, guidelines and directives laid down from time to time by the relevant select committee of each House in reports issued by them and otherwise.
Codes & Guidance Notes
Programme Code
Appendix One : Extracts from the Broadcasting Act 1990
6. General requirements as to licensed services
The Commission shall do all that they can to secure that every licensed service complies with the following requirements, namely:
a. that nothing is included in its programmes which offends against good taste or decency or is likely to encourage or incite to crime or to lead to disorder or to be offensive to public feeling;
b. that any news given (in whatever form) in its programmes is presented with due accuracy and impartiality;
c. that due impartiality is preserved on the part of the person providing the service as respects matters of political or industrial controversy or relating to current public policy;
d. that due responsibility is exercised with respect to the content of any of its programmes which are religious programmes, and that in particular any such programmes do not involve -
i. any improper exploitation of any susceptibilities of those watching the programmes; or
ii. any abusive treatment of the religious views and beliefs of those belonging to a particular religion or religious denomination; and
e. that its programmes do not include any technical device which, by using images of very brief duration or by any other means, exploits the possibility of conveying a message to, or otherwise influencing the minds of, persons watching the programmes without being aware, or fully aware, of what has occurred.
6.2
In applying subsection (1)(c) a series of programmes may be considered as a whole.
6.3 The Commission shall -
a. draw up, and from time to time review, a code giving guidance as to the rules to be observed in connection with the application of subsection (1)(c) in relation to licensed services; and
b. do all that they can to secure that the provisions of the code are observed in the provision of licensed services; and the Commission may make different provision in the code for different cases or circumstances.
6.4
Without prejudice to the generality of subsection (1), the Commission shall do all that they can to secure that there are excluded from the programmes included in a licensed service all expressions of the views and opinions of the person providing the service on matters (other than the provision of programme services) which are of political or industrial controversy or relate to current public policy.
6.5
The rules specified in the code referred to in subsection (3) shall, in particular, take account of the following matters:
a. that due impartiality should be preserved on the part of the person providing a licensed service as respects major matters falling within subsection (1)(c) as well as matters falling within that provision taken as a whole; and
b. the need to determine what constitutes a series of programmes for the purposes of subsection (2).
6.6
The rules so specified shall, in addition, indicate to such extent as the Commission consider appropriate:
a. what due impartiality does and does not require, either generally or in relation to particular circumstances;
b. the ways in which due impartiality may be achieved in connection with programmes of particular descriptions;
c. the period within which a programme should be included in a licensed service if its inclusion is intended to secure that due impartiality is achieved for the purposes of subsection (1)(c) in connection with that programme and any programme previously included in that service taken together; and
d. in relation to any inclusion in a licensed service of a series of programmes which is of a description specified in the rules -
i. that the dates and times of the other programmes comprised in the series should be announced at the time when the first programme so comprised is included in that service; or
ii. if that is not practicable, that advance notice should be given by other means of subsequent programmes so comprised which include material intended to secure, or assist in securing, that due impartiality is achieved in connection with the series as a whole;
and those rules shall, in particular, indicate that due impartiality does not require absolute neutrality on every issue or detachment from fundamental democratic principles.
6.7
The Commission shall publish the code drawn up under subsection (3), and every revision of it, in such manner as they consider appropriate.
6.8
Nothing in this section or in sections 7 to 12 has effect in relation to any licensed service which is an additional service other than the teletext service referred to in section 49(2).
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