The Scottish Elections (Details to appear on Election Material) Regulations 2020

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations make provision in relation to details which must appear on election material in terms of section 143(1)(b) of the Political Parties, Elections and Referendums Act 2000 (“the 2000 Act”).“Election material” has the meaning given by section 143A of the 2000 Act. Section 143(1)(a) of the 2000 Act already makes provision in this regard in relation to certain types of printed documents. These Regulations make provision, which applies to Scottish local government and Scottish Parliament elections, in relation to “other material”.

Regulation 4 defines the circumstances in which election material is published for the purposes of these Regulations. Regulation 5 provides that material to which section 143(1)(b) of the 2000 Act applies is not to be published, in relation to those elections listed in regulation 6 , unless it includes the name and address of the promoter (the person who causes the material to be published) and any other person on behalf of whom the material is being published.

Regulation 7(1) provides that regulation 5 does not apply to the publication of election material which is published by an individual other than a “relevant person”, expresses the individual’s personal opinion and is published on the individual’s own behalf and on a non-commercial basis. Regulation 7(2) defines “relevant person”.

Regulation 8 provides that material which can reasonably be regarded as promoting or procuring the electoral success of two or more candidates of the same party is not to be taken as being published on behalf of a particular candidate (for the purposes of regulation 5(b)) merely by reason of that fact but may be regarded as being published on behalf of the party.

By virtue of section 143(9) of the 2000 Act, an offence is committed where material to which these Regulations apply is published in contravention of the requirements set out in these Regulations. Either the promoter of the material or any other person by whom the material is published, within the meaning of these Regulations, can be found guilty of the offence (“the relevant offence”).

Regulations 9 to 12 make provision in relation to the circumstances in which making facilities available in connection with electronic communication or the storage of data is, or is not, to result in the commission of the relevant offence. They also ensure compliance with Directive 2000/31/EC on certain legal aspects of information society services in the Internal Market (OJ L 178, 17.7.2000, p.1) (“the Directive”).

Regulation 9 provides that proceedings for the relevant offence cannot be taken against an information society service provider based in another EEA state, in respect of anything done by the provider in providing that service, unless the derogation condition is met. This ensures that the relevant offence, as applied to material falling within these Regulations, complies with Article 3(2) and (4) of the Directive.

Regulations 10 to 12 specify circumstances involving mere conduit, caching and hosting of information society services which are not to result in the commission of the relevant offence. These ensure that the relevant offence, as applied to material falling within these Regulations, complies with Articles 12 to 14 of the Directive.