A Media Lawyer’s perspective: The legality of ‘spin’ in US and UK politics

I am sometimes asked how politicians can “get away” with some of the more obvious untruths which they spout, especially during major political campaigns such as the US election which is about to reach its climax. Journalists persistently accuse politicians of “spin”; which in many cases is monstrous hypocrisy when much of the British media – especially the print press – apparently feels no obligation whatsoever to tell the public the truth in its reporting of politics or anything else.

Article 10
Journalists are fond of citing Article 10 of the European Convention of Human Rights in claiming their right to free speech. They are less keen apparently on respecting the right of the public, also enshrined in that Article, to receive information; ie, to be told the truth. These double standards are epitomised in the Independent Press Standards Organisation, which was set up by the press, funded by the press, appointed by the press, its code written by the press, on whose committee the press is well-represented. IPSO has just published its annual report from which it emerges that is rejected of over 90% of complaints that it adjudicated over the last 12 months, betraying its glaring lack of independence and refusal to be Leveson compliant. It is however better than no form of regulation at all, and with the necessary expertise some good use can be made both of IPSO and its code.

US ‘wild west’
Beginning with the US; it is in every sense the “wild west” when it comes anyone having to take any responsibility for what they say. The US has long prioritised the right to free speech, enshrined in the First Amendment to the US constitution, over the right of the individual not to be the subject of damaging false allegations; whereas in the UK and Europe we regard those rights as being of equal importance.

The US law of libel requires a claimant to prove both that any allegation is false, and that the author/publisher of that allegation knew it to be false. This is the equivalent of the UK’s Malicious Falsehood; a close cousin to the UK law of libel. It is for this reason that there are virtually no libel claims made in the US; and still less succeed. Not only then is there a legal impediment to suing a political opponent, or errant journalist/publication, for defamation; there are also the practical problems of getting the matter to trial before any election.

Defamation
Just as in the UK, there are sound political reasons for not electing to enforce your legal right not to be defamed – now enshrined in Article 8 of the ECHR; in addition to the time factor. Politicians have occasionally sought the assistance of the courts in extreme examples where a political opponent has libelled them, and have achieved the desired outcome even after an election has been lost.

Pyrrhic victory
In 2010 a Labour MP he attacked his Liberal Democrat challenger, making a number of claims in election leaflets and mocked-up newspapers, including that his opponent had tried to woo the vote of violent Muslim extremists, and that he had refused to condemn threats of violence against the Labour MP. Initially these tactics seemed to have worked: the Labour MP won the election by 103 votes. It proved however to be a Pyrrhic victory because the Labour MP was later found by an election court to have fallen foul of the Representation of the People Act 1983, which makes it illegal to make false statements of fact about a candidate. The election result was declared void, and the Labour was disqualified from standing for Parliament for three years.

British press
One of the key roles of a responsible media should be to expose untruths espoused by politicians. Sometimes the media does so. Too often alas the media is far too compromised by its own lack of respect for the truth properly to fulfil its democratic roll and enable voters to make informed decisions on how to cast their votes. Worse still, the British press in particular will tell the public rank lies, such as “Queen backs Brexit”, to both promote its own political agenda and medicate its hubris.

Written by Jonathan Coad, Coad Law