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by Caoilfhionn Gallagher QC and Jonathan Price
Last week, as French voters went to the polls to choose their new president, the usual 32-hour period of enforced electoral silence fell throughout the Republic. In France, just as in the UK, candidates and their supporters are banned from campaigning, and the media is forbidden from reporting results, or even estimates of results such as opinion polls or exit polls, or from carrying campaigners’ statements. The period is set at 32 hours – from midnight on Friday to 8pm on Sunday, the day of the election itself – in order to accommodate early voting in French overseas territories.
As usual, however, francophone Swiss and Belgian media with websites available in France began reporting the results of election day exit polls well before lunch; polls which suggested (with a high degree of accuracy as it turns out) that voters were backing centrist Emmanuel Macron by a strong margin over far-right candidate Marine Le Pen. ‘Polls show French backing Macron,’ reported the Associated Press, at a time when millions had yet to cast their votes, based on multiple polls cited by Swiss newspaper La Tribune de Geneve and Belgium's RTBF and Le Soir. In fact messages, many cryptic, referring to the results of those polls were already circulating widely on social media within France, often with the hashtag #RadioLondres, a nod to the London-based radio station of the French resistance during World War II and its famed coded messages, and also the title of a French internet-based media outlet targeted at young people between the ages of 15 and 26. Individuals and media organisations sharing these polls on election day can in theory be fined up to €75,000 pursuant to the 1977 legislation that creates the offence, although there are no reports of any prosecutions. CNBC has also reported that, whilst there was little discussion in the French media of the content of the nine gigabyte dump of documents claiming to have been hacked from the Macron campaign (put online on Friday night), given the election silence rules, those Le Pen supporters and others who couldn’t resist sharing the leaked emails on social media during election weekend were also flouting the law.
Many countries operate a period of election silence when polls are open, preventing the publication of pre-election opinion and exit polls. In some countries the period starts shortly before the election: for example, it kicks in 24 hours beforehand in Singapore (called a “cooling off” day) and from 14.00 the day before in Ireland.
In a 2003 study, Article 19 described the rationale for such bans as follows:
“Media coverage of such information can, at times, be controversial. This is particularly true of polls and projections commissioned or conducted by a source that is not impartial. Furthermore, polls may be subject to manipulation at many levels: in the choice of questions, the choice of sample, the time that the questions are asked, and so on. It is often perceived, therefore, that polls and projections may have a distorting effect on the vote, rather than simply reflecting public sentiments.”
Election silences are controversial, with many considering enforced reporting bans on polls to be patronising, anti-democratic and an unjustified interference with freedom of expression. Academic Chris Game, for example, argues that, “used properly, opinion polls help inform and enhance our democratic choice... Ban the publication of these reputable polls and you’ll be left with the internet-transmitted findings of the disreputable ones.” Other critics argue that such media blackouts are pointless, as information may be published abroad yet become available to domestic audiences via the internet and social media, as has been happening so vividly in France.
Duration of the Election Silence
A particularly controversial issue which crops up repeatedly internationally is the timeframe over which a prohibition applies and whether this is a necessary and proportionate interference with freedom of expression. In both Canada and France far longer bans were in place until they were struck down by the courts. In 1998, the Canadian Supreme Court in Thomson Newspapers Co. v. Canada (Attorney General)  1 SCR 877 held that a 72-hour ban on the publication of opinion survey results prior to elections violated freedom of expression as protected by the Canadian Charter of Rights and Freedoms, and could not be justified as necessary to protect the integrity of the electoral process (a more targeted election day ban followed the ruling). Similarly, in 2001 France’s Court de Cassation ruled that the French 1977 law in its original incarnation which banned the publication and broadcasting of opinion polls for seven days preceding each of the two rounds of voting in the country’s national elections breached Article 10 of the European Convention on Human Rights; and the French Senate the following year concluded that the week-long ban not only violated the media’s rights, but also the public’s right to receive information, as it permitted the media to rely on poll results to inform their reporting, but to keep the basis of that reporting – the poll results themselves – secret from the public.
In the UK, the Representation of the People Act 1983, section 66A (in force since March 2000) provides that it is a criminal offence to publish exit polls: “(1) No person shall, in the case of an election to which this section applies, publish before the poll is closed (a) any statement relating to the way in which voters have voted at the election where that statement is (or might reasonably be taken to be) based on information given by voters after they have voted, or (b) any forecast as to the result of the election which is (or might reasonably be taken to be) based on information so given” (s. 66(1)). ‘Forecast’ and ‘publish’ are broadly defined by s. 66(4). This section applies to any parliamentary election and any local government election (s. 66(2)), but not to referendums; and it applies both to polls focused on voting in a particular constituency or ward, and to voting patterns nationally.
Under the Communications Act 2003, Ofcom has a statutory duty to ensure special impartiality requirements are observed, particularly during elections and referendums. These requirements are reflected in Section 6 of the Broadcasting Code. For election day itself, Rule 6.4 provides that, “Discussion and analysis of election and referendum issues must finish when the poll opens.” This refers to the opening of physical polling stations; the same rule does not apply to postal voting. Rule 6.5 bars broadcasters from publishing the results of any opinion poll on polling day itself until the poll closes (unlike s. 66A, this extends to referendums as well as to national elections).
Ofcom has in recent years found a number of breaches of Rule 6.4. For example, during the Brexit referendum in June 2016, when the polls were open (between 21.00 and 22.00), Fox News aired two news items on Your World with Neil Cavuto. The pieces included commentary on the likelihood of a vote to leave the EU; issues debated during the campaign, such as immigration; and how an exit from the EU could potentially benefit British trade relationships with the rest of the world. It included statements such as:
“I mean we are governed by a bunch of bureaucrats that don’t speak English in a funny place called The Hague, which makes no sense at all, and it tells Britain what to do, it takes British money, it doesn’t send much of if it back – it’s a very unfair one-way street when you begin to dig into it and the biggest thing of course is that all of this is all a disguise over the immigration issue”.
“Politicians, moronic celebrities who don’t know anything about trade imbalances, they are waiting on this, the media – the BBC is like a running ad for Remain, and it goes on and on so that is a lot for the Brexit, British exit crowd to really fight up against.”
“Well the last polls had it neck and neck, fifty-fifty, nothing between the two but the bookies, the people who are taking money and placing bets say its 84% likely that the UK will vote to remain so that could be wrong, but that’s an indication so far…”.
Fox News’s defence was that:
- This was legitimate, balanced coverage of the referendum and it was not “advocating a particular position on the vote” (a stance which was unsustainable given the transcripts);
- Due regard must be given to the right to freedom of expression; and
- This edition of the programme was aimed at an American audience and was timed to coincide with the closing of the US stock market at 16.00 EST.
Ofcom rejected this and found Fox News to be in breach of Rule 6.4. This was relatively straightforward, as, although Fox News is a channel originating in the USA, it is broadcast on the digital satellite platform and licensed by Ofcom in the UK. Similarly, in 2014 Ofcom found that RT (formerly Russia Today) had breached Section 6 of the Code when it broadcast a news item dealing with election issues (including references to UKIP taking a “narrow lead” in final opinion polls) after European Parliament polls had opened. RT is a channel produced in Russia, but in the UK it broadcasts on satellite and digital terrestrial platforms, with the licence held by TV Novosti. The breach was accepted to be inadvertent, and we note that there was no suggestion of a s. 66A prosecution.
It will be interesting to observe how rule 6.4 of the Ofcom Code and section 66A of the 1983 Act hold up during the forthcoming UK elections on 8 June. We note the contrast in attitudes towards laws of this nature on the two sides of the Channel. In France the law is widely flouted by individual social media users with considerable assistance from media outlets in neighbouring states, and there seems little appetite for enforcement. In the UK Ofcom has taken relatively minor breaches of the code quite seriously, and we are not aware of any concerted social media campaign aimed at distributing poll data on election day comparable to #RadioLondres in France.
This piece has been published on the Inforrm blog, available here