Section 106 of the Representation of the People Act 1983 – the personal versus the political.
by John McCafferty, Clara Zang and Rosalee Dorfman Mohajer
This article considers the caselaw relating to the prohibition of false statements about another candidate in Council and Parliamentary elections, pursuant to section 106 of the Representation of the People Act 1983 (“RPA 1983”). The purpose of s.106 is to protect the public from false information and ensure a free election but are its provisions fit for purpose in the modern digital landscape?
- The statutory provision
S.106 RPA 106 states that it is an illegal practice to make a false statement concerning the personal character or conduct of a candidate for the purpose of affecting the return of any candidate, e.g. calculated to influence electors. There is no protection for false statements about the political character or conduct of the candidate, and this was considered to necessary to protect the right to freedom of expression in Article 10 of the European Convention of Human Rights.
Section 106 of the RPA 1983 provides:
"(1) A person who, or any director of any body or association corporate which—
(a) before or during an election,
(b) for the purpose of affecting the return of any candidate at the election, makes or publishes any false statement of fact in relation to the candidate's personal character or conduct shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, that statement to be true.
(2) A candidate shall not be liable nor shall his election be avoided for any illegal practice under subsection (1) above committed by his agent other than his election agent unless—
(a) it can be shown that the candidate or his election agent has authorised or consented to the committing of the illegal act by the other agent or has paid for the circulation of the false statement constituting the illegal practice; or
(b) an election court find and report that the election of the candidate was procured or materially assisted in consequence of the making or publishing of such false statements."
It is suggested there are two central problems in s.106: (1) false statement of fact is not defined; how does one separate the personal from the political? (2) how does one apply the exceptions in s.106(2)? The former question has been examined in caselaw, which is summarised below, but the courts have provided no clear guidance on the second question, which, we suggest, is increasingly relevant in an era of online campaigning where authorship is often unknown.
- What types of false statements are prohibited?
The leading case on a breach of s.106(1) is R (on the application of Woolas) v Parliamentary Election Court  EWHC 3169 (Admin), the judicial review of Election Court’s decision in Watkins v Woolas. The Liberal Democrat candidate Robert Watkins challenged the winning Labour candidate Philip Woolas in the Oldham East and Saddleworth Parliamentary election. Mr Woolas was found guilty of making or publishing false statements in three items of election literature:
- The statement that the Petitioner had attempted to woo the vote of “extremist” Muslims who advocated violence, in particular to Mr Woolas. Mr Woolas alleged that the Petitioner’s call for arms sales to Israel to cease was extremist;
- The statement that the Petitioner had refused to condemn extremists who advocated violence against Mr Woolas. An article bore the heading “Lib Dem Pact with the devil”.
- The statement in the election address that the Petitioner had reneged on his promise to live in the constituency.
The Election Court found the three false statements, taken together, so serious as to justify declaring the election void and disqualifying Mr Woolas from standing in election to Parliament for three years.
To assist in defining “personal character or conduct”, the Election Court relied on the case of The North Division of the County of Louth (1911) 6 O’M & H 103 which concern a candidate accused of placing his relatives in government posts. Madden J stated a false statement of fact relating to personal conduct may be used for the purpose of representing a candidate as guilty of either private or public immortality, political or otherwise, and in either case it fell within the statutory prohibition. North County Louth proposed the statute gives redress “when the man beneath the politician has his honour, veracity and purity assailed”. Reliance on this led the Election Court to determine that a false statement could be both in relation to personal character or conduct and political character or conduct. The court in R (Woolas) rejected that interpretation; a statement must be one or the other. R (Woolas) did not overrule North County Louth but suggested that terms such as “honour” and “purity” should no longer be used in assessing a breach of s.106 .
R (Woolas) upheld the Election Court’s findings that (1) and (2) statements were false statements, made dishonestly and therefore Article 10 was not engaged. However, the court had erred in characterising (3) – reneging on a promise to live in a constituency did imply that the Petitioner was a hypocrite, but was clearly a political matter, and therefore that finding of illegal practice was set aside.
The decision in R (Woolas) that a statement whether a candidate did or did not live in the constituency was a matter relating to his political position and not his personal character was applied in Banwait v. Bettany.
The petitioners in Morrison v Carmichael  S.C. 598 argued that Mr Carmichael, the successful Liberal Democrat candidate in the 2015 general election, had been guilty of an illegal practice under s.106 of the RPA 1983. They alleged that he had been involved in leaking a memorandum from the Scotland Office to the press, and had made a false statement of fact in relation to his personal character by deliberately lying about his involvement in the leak in order to affect his return at the election.
The petition was dismissed. The applicable standard of proof (beyond reasonable doubt) had not been met in respect of s.106(1)(b) where leaking was part of the political culture. The court was left with reasonable doubt as to whether the false statement proved to have been made was in relation to his personal character or conduct i.e. whether it was to the effect that he was an upright, honourable, trustworthy and straightforward individual who would therefore not be involved in a leak, rather than a more specific and limited statement that he was not involved in that particular leak.
In DPP v. Edwards, Mr Edwards was charged with breaching ss.106 and 110 of the RPA 1983 in respect of a leaflet that had been published and distributed just before a council election. In respect of the s.106 allegation, the leaflet accused the Labour councillor. Mr Kilkenny, of corruption by awarding his son-in-law’s company a £125,000 building contract whilst sitting as a chairman of the local authority’s housing committee. The magistrates acquitted Mr Edwards on the basis that, although the statement was false, it related to a public rather than a personal act and therefore fell outside the scope of s.106.
On appeal by way of case stated, the High Court held that, in circumstances where the justices had found that the factual statement in the leaflet was false, the only proper verdict that they could and should have returned was one of guilty; the plain meaning of the leaflets clearly accused Mr Kilkenny of personal involvement in the award of a contract in pursuance of some personal and private motive.
- Problem of Agency
S.106(2) states that a candidate is not liable for, nor his election void, if any illegal practice in subsection (1) is committed by his agent, other than his election agent. The exception is that the candidate will be liable and election found void if it can be shown that he or his election agent or sub-agent (a) authorised, consented to or (b) paid for the circulation of the false statement or (c) was procured or materially assisted in such false statements being made or published.
This issue has become acute, it is submitted with the spread of the use of social media in political campaignuing. If Candidate A hires an agent to make political adverts for distribution on social media, which are found to contain false statements of fact about Candidate B’s personal character or conduct, who is liable? If Candidate A paid for the circulation it appears he would be liable under s 106(2), on its face, regardless of whether he knew it was a false statement. As the makers or publicists of the false statement, the agent and the media platform may also be liable under s 106(1). However, the platform could argue that it is not a publisher and, in any event, if held to be a publisher, it did not publish with the purpose of affecting the return of Candidate A, its purpose was to generate revenue for the company.
Without a direct link such as payment, it may be difficult to discern whether a candidate consented to the commission of the illegal practice. Further he could avoid liability in s.106(2)(b) by arguing his assistance was minor as opposed to “material”. Petitioners and the DPP face a high hurdle of proving the required degree of connection and to the criminal standard of proof. With more political campaigning occurring online and authorship often not being declared, there is a clear need for statutory intervention or guidance through caselaw.
What are the solutions to the problems arising out of s.106? The approach taken in the recent Police and Crime Commissioners 2012 Order (2012/1917) was to prohibit a candidate’s election address from referring to any other candidate running for election. Although this may be suitable for Police and Crime Commissioner elections, the effect on other elections would be a drastic reduction in free speech where candidates’ political conduct and character should be debated. Further, it is arguable that the effect of the 2012 Order is to place a too onerous burden on the Returning Officer to determine issues which should be matters for statute or the Election Court.
With regards to the problems of s.106 applied in the online sphere, the Electoral Commission called for increased transparency in digital campaigns, and in particular, that the law should be changed so that digital material must have an imprint stating who is behind the campaign and who created it and election adverts on social media platforms should be labelled to make the source clear. This echoed the reform recommended in the Law Commission’s 2016 interim report on election law. If such reforms were enacted, it would make it easier to investigate and bring a s.106 petition or prosecution based on online statements and curtail the proliferation of false statements on social media during election periods.
In respect of the problems of the definition of a false statement of fact in s.106(1) and separation of the personal and political conduct and character, the caselaw summarised above offers some, limited, guidance. Examples of circumstances where a false statement is in respect of a candidate’s personal conduct and character are:
- relate to the candidate’s family, religion, sexual conduct, business or finances (R (Woolas) ).
- imply that a candidate is racist (Erlam & Ors v Rahman  EWHC 1215 (Comm)).
- state that a candidate is corrupt, if it alleges that he is personally dishonest and committing a crime (DPP v Edwards; R (Woolas) ).
- imply that a candidate advocates violence or fails to condemn those who are violent (Watkins v Woolas).
A clear example of political conduct is a statement in relation to a commitment to live in a constituency.
In conclusion, s.106 does help prevent false statements about a candidate’s personal conduct and character but its ability to protect the electorate from false information and ensure free elections is yet to be tested in the online and social media context.
 (R (on the application of Woolas) v Parliamentary Election Court  EWHC 3169 (Admin)). Article 10 protects untrue statements that were made carelessly but does not extend a right to publish statements which the publisher knows to be false, i.e. the statement was made dishonestly.
  EWHC 2702
  EWHC 3263
  EWHC 636 (Admin)
 Article 52 and Schedule 8.
 The Electoral Commission (2018) Digital campaigning: Increasing transparency for voters. Available at www.electoralcommission.org.uk/__data/assets/pdf_file/0010/244594/Digital-campaigning-improving-transparency-for-voters.pdf [accessed 28 August 2019].
 The Law Commission, Election Law: An Interim Report (4 February 2016). Available at https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2016/02/electoral_law_interim_report.pdf (p 228): Recommendation 11-6: the imprint requirement should extend to online campaign material intending to procure or promote any particular result