Election law - 25 May

Many European countries already restrict the publication of opinion polls and exit polls in the immediate run up to an election, or on election day itself, because of concerns at how they may influence voters. Recent experience has also shown that even last-minute opinion polls and exit polls can be inaccurate and cause confusion.  In the 1992 General Election, exit polls showed the Conservatives closing the gap on Labour but still failed to predict a Tory overall majority. November’s presidential election fiasco in Florida further highlighted the danger of the media calling the result of an election before the count is complete. Now, English law has taken a step towards restricting how election results can be forecast on election day itself.

Hidden away in schedule 6 of the Representation of the People Act 2000 is a provision that prohibits the reporting of the result of any exit polls prior to the close of polls. The prohibition applies to Westminster parliamentary elections and local government elections in England a

and Wales and applies to individual constituencies as well as to the overall election. The provision is wide ranging, banning the publication of any forecast which could be understood to be based on an exit poll.

In making predictions on election day, therefore, journalists should avoid implying that they are basing their comments on a poll of how people have actually voted. However, normal opinion polls and party telling activity remains unaffected.

The prohibition applies to all media, including online news sites and evening newspapers. Indeed, because broadcasting codes already prescribed what use could be made of exit polls, this development is likely to be of most concern to print and new media journalists.

However, journalists who operate under a broadcasting regulatory code should be aware that the new statutory prohibition goes further than the codes.

Journalists who publish exit polls prior to the close of polls could find themselves prosecuted and face a fine and, in theory at least, imprisonment.  The change was prompted by proposals for the introduction of early voting or extended voting in elections in an effort to increase turnout. Where voting may take place over more than one day, the results of exit polls would, it was feared, influence electors who had not yet cast their vote or could even put people off voting at all.

The proliferation of news outlets in recent years, particularly over the internet where there is minimal content regulation, only reinforced this concern. While flexible voting initiatives have got off to a shaky start, the new restriction on publishing exit poll results remains in force.

David Attfield, senior assistant Media Group, Lovells

By David Atfield

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