International law provides that any person who believes that their rights have been violated shall be entitled to an effective remedy in a national tribunal. In relation to media and elections, this means that there is an expectation that the courts will be able to deal with any unjustified restrictions on media coverage, denial of access to the media, denial of the right of reply, defamatory or inflammatory material, or any other issue where media, parties and candidates, or the electorate feel that their rights have been infringed.
Inherent in the notion of a remedy is the idea that it will actually offer the complainant a timely and practical solution. This is especially important in the context of an election. If, for example, defamatory or inaccurate information is broadcast, the remedy required will not be a correction or even monetary compensation at some distant future date. The important thing is that it should be corrected while it is still fresh in the electorate’s collective mind (and while it is still relevant to the outcome of the poll).
So, while the normal courts will still be the ultimate arbiters of whether rights have been infringed, many countries also have administrative procedures that will be able to deal with complaints more rapidly. These may be regular complaints mechanisms operated by a broadcasting regulator or a media council. Or they may be special procedures that are only in place during election periods.
When the body that decides the complaint is administrative (rather than judicial) in nature, then it should be separate from the body complained against. This would apply, for example, in the case of complaints against a broadcaster.
The UN Technical Team for the Malawi Referendum recommended that "a recourse mechanism should be present providing for independent review of cases where restrictions on this right [to freedom of expression] have been applied." [1]
[1] Report of the UN Technical Team on the Conduct of a Free and Fair Referendum on the Issue of a One Party/Multiparty System in Malawi (15-21 Nov. 1992), para. 29.
