The Scottish Elections (Details to appear on Election Publications) 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 publications which can reasonably be regarded as intended to promote or procure the election of candidates at Scottish local government and Scottish Parliament elections. Section 110A(2)(a) of the Representation of the People Act 1983 (“the 1983 Act”) and article 72(2)(a) of the Scottish Parliament (Elections etc.) Order 2015 (“the 2015 Order”) already make provision in this regard in relation to certain types of printed documents. These Regulations make provisions in relation to “other material” in terms of section 110A(2)(b) and article 72(2)(b).

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 Regulation 5 provides that material to which section 110A(2)(b) of the 1983 Act applies shall not be published unless it includes the name and address of the promoter (the person who causes the material to be published) and any other person on behalf of whom the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 makes the same provision as regards material to which article 72(2)(b) of the 2015 Order applies.

Regulation 6 and regulation 8 provide that regulation 5 and regulation 7, respectively, do not apply to the publication of 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 9 defines “relevant person”.

By virtue of section 110A(12) of the 1983 Act and article 72(10) of the 2015 Order, 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 10 to 13 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 10 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 11 to 13 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.