Are #ElectionSelfies illegal in today’s Scottish referendum?

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At every election and public vote in recent memory, the same conundrum has reared its ugly head: Are “election selfies” illegal? Can you take photos of your ballot—or will it land you with a hefty fine, or even prison time? 

In certain U.S. States the practice is certainly prohibited, as is the case in New Zealand, and guidance put out by the Yes campaign in today’s Scottish referendum on independence suggests you could be in for a “a fine of up to £5000” ($8000) for doing so.  

Although actually, when it comes to the Scottish referendum, it isn’t illegal. At least—not necessarily.

The May 2014 European Election report put together by the Electoral Commission is one of the most up-to-date sources of guidance on the subject. They caution that there’s certainly the risk of “inadvertently breaching the law”—but also that “election selfies can generate a sense of excitement and involvement around a poll, and could encourage other people to vote.”

The relevant law is Section 66A of the 1983 Representation of the People’s Act. As the Register notes, it forbids any attempt to:

Interfere with or attempt to interfere with a voter when recording his vote, [or] otherwise obtain or attempt to obtain in a polling station information as to the referendum answer for which a voter in that station is about to vote or has voted;

communicate at any time to any person any information obtained in a polling station as to the referendum answer for which a voter in which that station is about to vote or has voted, or as to the number or other unique identifying mark on the back of the ballot paper given to a voter at that station; [or]

directly or indirectly induce a voter to display his ballot paper after he has marked it so as to make known to any person the referendum answer for which he has or has not voted.

What does this mean for voters? Well firstly, any photo that contains any information about the votes of others—even indirectly—can land you with the $8,000 fine and/or six months in prison. Similarly, if you’re judged as being “disruptive” by a polling officer, reports ScotlandVotes, you’re potentially breaking the law. But it doesn’t necessarily forbid you from taking a photo of your own ballot. 

The Daily Dot asked the Electoral Commission for clarification and was told that “while it is not necessarily a criminal offence to photograph a completed ballot paper either at home or within a polling station, it is strongly discouraged as it could violate the secrecy of the ballot, which is fundamental to the integrity of the process.”

“In particular, the law relating to obtaining information in polling places and disclosing such information is complex,” said Chief Counting Officer Mary Pitchaithley. “Given the risk that someone taking a photograph inside a polling place may be in breach of the law, whether intentionally or not, my advice is that photos should not be taken inside polling places.”

The issue is complicated further when it comes to members of the media. The press “have no right to enter a polling station except as voters or accredited observers,” official guidance reads, and they “must not be allowed to film or interview voters in the polling station.” If BBC political Scottish editor Brian Taylor, say, were to cast his vote in the referendum, and snap a photo as a personal memento, then that would be a-okay. But if he then tweeted it out in an official capacity—or included it in a report? The law simply doesn’t have an answer. 

Much of the relevant legislation was drawn up decades ago, long before the advent of social media. The issues now simply could not have been foreseen in an age before personal computers, much less smartphones. Carelessness may put you in violation of the (albeit out-dated) rules, but it’s clear that the Yes campaign’s blanket warnings that “if you’re caught taking a photograph inside the polling station—even a selfie—you face a 6 month jail sentence” is false. 

Their warnings against writing “quotes from Braveheart” on your ballot, however? Sound advice.

Photo via Susanne Nilsson / Flickr (CC BY-SA 2.0) | Remix by Rob Price

Rob Price

Rob Price

Rob Price is a technology and politics reporter who served as the U.K.-based morning editor for the Daily Dot until 2014. He now works as the news editor for Business Insider, and his work has appeared in Vice, Slate, the Washington Post, and the Independent.