Truth, Justice & Elections

It is generally accepted that freedom of expression must be guaranteed in the run up to elections for such elections to be democratic. In the context of the recent UK and US elections, two contrasting approaches to freedom of expression in the context of elections can be observed.

The UK famously does not have a written constitution and, until the Human Rights Act 1998, had no written document of constitutional value which provided the right to freedom of expression. In the election context, the relevant provision is section 106 of the Representation of the People Act 1983 (RPA 83), inheritor of ss. 1 & 3 of the Corrupt and Illegal Practices Prevention Act 1895, which limits what one candidate may say about another. s. 106 prohibits ‘false statement[s] of fact in relation to the candidate’s personal character or conduct’ for which the speaker has no ‘reasonable grounds for believing, and did [not] believe, […] to be true.’ s. 106, then, establishes a two-pronged test which requires a complainant to prove i) that the statements relate only to his personal character or conduct and ii) that the respondent had no reasonable grounds for believing and did not actually believe the statements.

This provision, or its predecessors, had not been used for 99 years when, on 5 November 2010, the Election Court ruled in the matter of Watkins v Woolas (Robert Elwyn James Watkins v Philip James Woolas [2010] EWHC 2702 (QB)). The judgement is also the first for 86 years to remove an elected MP from his seat.

The case arose out of the 2010 election in the Oldham East and Saddleworth constituency where Mr Woolas, the then Immigration Minister, was returned to Parliament by a majority of 103 over his nearest rival, Mr Watkins. In the course of the campaign for a constituency divided between Muslim and non-Muslim voters, Mr Woolas had accused Mr Watkins of courting the extremist Muslim vote, of siding with extremists who threatened violence, of lying about his intention to move into the constituency and of accepting illegal campaign donations from a Saudi Arabian Sheikh (§§ 19 – 23). The Election Court found that all but the fourth allegation constituted attacks on the personal character or conduct of Mr Watkins which Mr Woolas had no reasonable ground for believing were true and did not believe were true. The statements were therefore sufficiently serious to warrant the statutory penalty of voiding Mr Woolas’ election and disqualifying him from standing for Parliament for three years. On 16 November 2010, Mr Woolas commenced his appeal against the ruling.

By contrast, in the particularly angry 2010 mid-term elections in the USA, candidates were described as corrupt and having engaged in insider trading (Jerry Brown about Meg Whitman, California Governor’s Election), a slumlord (Harry Mitchell about David Schweikert, Arizona Congressional Election) and attempting to steal the election (Sharon Angle about Harry Reid, Nevada Senate Election). All of these would appear to be statements on the personal character and conduct of the candidate which could fall under the test set out at s. 106 RPA 83. As the Election Court said ‘[n]o person, whether or not he was a politician, would wish that to be said of him.’ (§ 198) However, the limit on the content of election campaigns in the US is that of the ‘actual malice’ test set out in New York Times Co. v. Sullivan, (New York Times Co. v. Sullivan, 376 US 254) where the Supreme Court stated that public figures could recover damages for defamatory falsehoods only when these were made with actual malice, that is, ‘with knowledge that it was false or with reckless disregard of whether it was false or not.’ (p. 280)

At first blush, it would seem that both the actual malice test and s. 106 RPA 83 are equally difficult to fulfil: both require a false statement and that the complainant adduce proof of the speaker’s actual state of mind when making the statement. In Watkins v Woolas, the Election Court held that ‘[…]if the petitioner establishes both the factual and mental elements of the alleged illegal practice, in the absence of any explanation from the respondent, the inference would almost certainly be that he did not have reasonable grounds for believing in the truth of what was published.’ (§ 57, emphasis added) Conversely, the actual malice test requires ‘clear and convincing’ proof (Edwards v. National Audubon Society, Inc., 556 F. 2d 113 (1977)) and does not admit of any negative inferences against the speaker (see the summary of actual malice in Sharon v. Time, Inc., 599 F. Supp. 538 (1984), 563). This indicates that, in practice, the s. 106 test is easier to pass than the actual malice test. However, in Woolas v Watkins, the Election Court does not actually draw any inferences, instead it relies on Mr Woolas’ own evidence given in cross-examination seen in the light of the email correspondence adduced to find that Mr Woolas had no belief in the truth of any of the statements and that they had been used ‘to galvinise (sic) the white Sun-reading voters.’ (§ 151) The Court noted, especially in relation to the statement on wooing the extremist vote, that ‘[t]he Respondent did not say he had such a belief and there were no grounds for such a belief.’ (§ 197, emphasis added) It would thus appear that both tests, in their application, provide sufficient protection for freedom of expression to enable democratic elections to take place.

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