What are the legal restrictions on publishing exit polls during elections?

An exit poll is a survey which asks voters, after they have voted at polling stations, which candidate and/or political party they voted for. Exit polls are valuable reporting tools as, when carried out properly, they can accurately predict the eventual outcome of the election, such as the hung Parliament correctly predicted by the exit polls in the 2017 election.

The publication of such predictions before polls close could arguably affect the election results by influencing those yet to vote. Voters could alter their initial voting intention after hearing that a particular party or candidate has the majority according to the exit polls. Alternatively, a voter may decide not to vote at all because the candidate or party they would have chosen is winning, according to the exit polls, or because their candidate or party does not seem to need any further votes to win.

Laws have been put in place to prevent such potential contamination of the democratic process of electing Members of Parliament or members of local councils.

Section 66A of the Representation of the People Act 1983 (as amended) makes it a criminal offence ‘to publish, before a poll is closed, any statement about the way in which voters have voted in that election, where this statement is, or might reasonably be taken to be, based on information given by voters after they voted’.

It is also an offence under the Act ‘to publish, before a poll is closed, any forecast – including any estimate – of that election result, if the forecast is based on exit poll information from voters, or which might reasonably be taken to be based on it’.

These laws apply to both parliamentary and local elections, elections to the Welsh Assembly and by-elections. The Act applies to exit polls focusing on voting in a particular constituency or ward and to voting patterns nationally. The publication of exit polls is also prohibited during voting for European Parliamentary elections.

A publisher who breaches s 66a would be liable to a fine of up to £5,000 or a jail term of up to six months.

What opinion poll data or exit poll data can be published and at what stage in the voting process?

It is safe for publishers to refer to opinion poll data on the voting intentions of the public (whether a constituency or the nation) before voting opens. This is legal because it is felt that simply reporting voters’ intentions would not sway other voters either way and it would be undemocratic to stifle all comment on how voters intend to vote.

Equally, once the voting window has closed, exit polls can have no effect and so publication at this stage is also legal. This applies to the results of exit polls as well as forecasts based on these statistics. This practice is frequently carried out on election night TV programming. If voting occurs over a number of days and not just one ‘election day’ (as is increasingly being trialled to give more people a chance to vote), publishers can only publish exit polls after polls close on the final day of voting.

The Times narrowly escaped legal action when it published an opinion poll in June 2004 on how people had voted in areas that had used all-postal ballots. Since the poll was published in the newspaper during the European parliamentary elections that it referred to, the Electoral Commission (an independent watchdog on elections) alerted the Crown Prosecution Service. The Electoral Commission stated that publishing such an opinion poll amounted to publishing an exit poll before voting had closed. However, the Crown Prosecution Service chose not to take any action against The Times

The Ofcom Broadcasting Code (which forms part of the BBC Editorial Guidelines) states: ‘No opinion poll may be published on the day of the election until the polls close, or in the case of the European election, all the polls have closed across the European Union.’