Provisions for Public Media

In most systems, different regulations will apply for the publicly and privately-funded media. In addition to the ethical obligations attaching to all journalists and broadcasters, public media are also accountable to the electorate, who are their funders and, ultimately, their owners. Hence it is usually assumed - and this assumption is clearly based on international law - that the public media should be politically impartial.

There are other obligations that may attach to the public media alone. In some systems, there is no legal requirement for private media to carry direct access broadcasting or advertisements from political parties during an election campaign. Yet, for the public media, there usually is such a requirement. Much of this section is devoted to the issues that flow from this:

• will direct access be through paid political advertising or free party election broadcasts?
• how will the amount of time be allocated between the parties or candidates?
• at what time of day will direct access slots be broadcast?

This section also looks at how far it is appropriate for the regulatory body responsible for the media in election times to regulate the editorial content of the public media - that is, those parts of the media's output that are normally under its own editorial control.

Another aspect of the responsibility of the public media flows from the government's obligation to inform and educate the electorate on how to exercise their rights in an election - voter education.

The obligations of public media have been well summarized in a series of guidelines developed by the freedom of expression group ARTICLE 19. First elaborated in 1994 to address the problem of ensuring fair coverage in state broadcast media that may have no history of impartial reporting, these guidelines have been widely disseminated and adopted since then.

Allocation of Time to Candidates and Parties

Almost invariably, the public media are thought to have a duty to publish or broadcast election statements by competing parties. It is generally accepted that the publicly funded media have some obligation to allow parties and candidates to communicate directly with the electorate.

Beyond that, however, there are many issues to be determined.

Paid Advertising, Free Access, or a Mixture of the Two?

It will have to be determined whether direct access by political parties will be free or paid or, as is often the case, a mixture of the two. Different rules are often adopted for print and broadcast media. Sometimes all parties are allocated free direct access but can top this up with paid advertising.

How Is the Time or Space Divided?

In a system of paid advertising, this may not be an issue - time is simply allocated to those who can pay. (Many would argue that this is why paid advertising is an unfair option.) But if direct access broadcasts are to be allocated by a regulatory body, how will this be done? What criteria have to be taken into account to divide up the available time? Is it to be done on the basis of equality - so that every party gets the same time - or equitability (fairness), whereby parties are allocated time according to the degree of popular support they enjoy. If the latter, then how is that determined? Should time be allocated on the basis of past electoral support (the number of seats currently held in parliament), opinion polls, the number of candidates standing - or some other criterion or a mixture of all of them? Different countries have adopted widely varying systems.

Timing of Slots

Will there be regulation about the times that slots are broadcast? If everyone is to get a chance to broadcast in peak time, how can slots be allocated? What order will the parties be allowed to broadcast in?

Who Pays - and Who Makes the Programme?

Will the party be responsible for making its own broadcast or will facilities be made available by the public broadcaster? And who foots the bill for the production of these spots?

Who Decides What is Broadcast?

Does the regulatory body have any say in the content of direct access broadcasts or political advertising? Can the parties say what they like? What are the limits?

Equal or Equitable Direct Access Coverage?

One of the fundamental decisions to be made in organizing direct access broadcasts by the parties is whether slots are to be allocated on the basis of equality or equity. Equality, clearly, means that every party or candidate gets the same access. Equity means that everyone gets fair access - the idea being that a party with large popular support should have more airtime than one that does not.

The Argument For Equality

Everyone gets an opportunity to put their point of view to the electorate. It will be the electorate that chooses, rather than a broadcaster or an electoral regulator. This is a simple system to administer and everyone can understand it. It is particularly attractive in a first democratic election when there is no sure way of knowing how much support the different parties have.

The Argument Against Equality

Equality gives a built-in advantage to the incumbent party, which has many other opportunities to convey its policies through the media. What equality does is to promote the no-hope opposition parties at the expense of those with a genuine possibility of ousting the ruling party. Equality may also mean that there is simply too much material being generated for the electorate to absorb. They will get bored and the direct access process may become a waste of time. Again this is likely to favour the incumbent.

Another argument against automatic equal access is that it will encourage frivolous candidates who are only interested in the free publicity.

The Argument For Equity

If direct access is allocated on a fair (or equitable) basis, this ensures that all parties are given an opportunity to speak to the electorate, roughly in proportion to their popular support. This means that the electorate gets to hear the arguments between the main contenders for office, while parties with less support also get a say (but a smaller one).

The Argument Against Equity

This system is an obstacle to the emergence of new parties, since it is always based on what support they achieved last time. And what if there was no last time? How is popular support determined in a first democratic election? The system could thus be open to abuse.

And the Answer?

There is no right or wrong answer to this problem, as can be seen by the variety of solutions in both well-established and new democracies. But the different approaches may suit different political systems better. Here are some further considerations:

• Equality may work better when there are fewer parties or candidates. When there are too many then the "cake" may have to be cut into impossibly tiny slices, or made so large that there is too much election broadcasting for anyone to take in.
• Equality may work better in a new or "transitional" democracy. This perhaps contradicts the previous point, since new democracies often have many parties (and ruling parties in new democracies may encourage this). But the point is that if there has been no previous democratic election, then there will be no commonly agreed measure of how much popular support each party has.
• Conversely, equity may work better in an established democracy where there are clear measures of past electoral support. Or are the equality advocates right, and does this just obstruct the emergence of new political alternatives?

But even these considerations are only pointers. Many established democracies - France, Italy, Denmark - allocate direct access broadcasting in the public media on the basis of equality (in at least some elections). And many new democracies - South Africa, Brazil, Namibia - have allocated time on a proportional or equitable basis.

Whichever approach is adopted, its success will depend in large measure on the credibility and impartiality of the regulating body that allocates the broadcasts. This is a very strong argument for having the political parties themselves involved in drawing up the regulations governing media and elections. Parties are more likely to be committed to a process in which they have been consulted and have contributed to designing the system.

All these arguments clearly apply primarily to criteria for allocating direct access time - that is, direct access broadcast programmes that are available free to parties. Paid political advertising, where it is allowed, will usually be on the basis that parties can have as much direct access time as they can afford (or as they are allowed within campaign spending limits). But this may not always be the case. And if limits are to be applied to paid advertising, then the same considerations of equality and equity may apply.

Equal Access for All Parties?

Many countries have allocated direct access broadcasting time on the basis of equality between the different political parties or candidates. Even so, there may be certain differences in the way that these systems work. Sometimes, for example, there may be a qualification criterion or threshold of support that must be met before equality applies.

France

The formula for allocating direct access broadcast time in the French presidential elections is one of equality for all candidates, who usually number about 14. If no clear winner emerges there is a second round run-off between the two leading candidates, and again air-time is allocated equally between them. [1]

Denmark

Denmark allocates equal time to all political parties in parliamentary elections, so long as they satisfy certain basic criteria: they must have been registered with the Ministry of the Interior, which requires that they will have collected signatures equivalent to one in 175 of the votes cast at the last election. [2]

Norway

In Norway, time is allocated equally, but again certain criteria must be met. Parties must have been represented in one of the last two parliaments, have a national organization and be fielding candidates in a majority of districts. Smaller parties that do not meet this threshold nevertheless have a short programme. [3]

Italy

The state broadcaster, RAI gives equal time to all competing parties in an election. However, private commercial broadcasters have no such obligation. [4]

Czechoslovakia

In Czechoslovakia's first democratic election, all parties received the same allocation of broadcast time - a total of four hours over a campaign period lasting 40 days. The slots were then divided up into slices of different time lengths. The exact schedule was then determined by lots. [5]

Armenia

Armenia gave equal access to each party, but the amount was limited to five minutes for each candidate or party. This avoided the problem of information overload but perhaps created an opposite problem. Was this really enough information for the voter?

Japan

Japan has a system of equal access but with a minimum qualification threshold. In order to receive equal broadcasting time a party must field at least 12 candidates. In the Upper House, however, all candidates receive five and a half minutes of free broadcasting time.

Netherlands

The Netherlands, like Japan, has a system that is a sort of modified equality. In principle all parties have equal broadcasting time. However, the regulatory body, the Media Commissariat, may allocate extra time to parties running candidates in all electoral districts. [6]

[1] Anne Johnston and Jacques Gerstle, "The Role of Television Broadcasts n Promoting French Television Candidates", in Lynda Lee Kaid and Christina Holtz-Bacha (eds.), Political Advertising in Western Democracies, Sage Publications, London/Thousands Oaks, 1995.

[2] Karen Siune, "Political Advertising in Denmark", in Lynda Lee Kaid and Christina Holtz-Bacha (eds.), Political Advertising in Western Democracies, Sage Publications, London/Thousands Oaks, 1995.

[3] Ibid.

[4] Gianpiero Gamaleri "Italy and the 1994 Elections: Media, Politics and the Concentration of Power", in Yasha Lange and Andrew Palmer (eds), Media and Elections: a Handbook, European Institute for the Media, Dusseldorf, 1995.

[5] Library of Congress, Law Library, Report for Congress: Campaign Financing of National Elections in Selected Foreign Countries, Washington, DC: July 1995, LL95-4, 95-1354: 58.

[6] Kees Brants, "The Blank Spot: Political Advertising in the Netherlands", in Lynda Lee Kaid and Christina Holtz-Bacha (eds.), Political Advertising in Western Democracies, Sage Publications, London/Thousands Oaks, 1995.

Equitable (or Fair) Access for Political Parties?

If the approach of equality is rejected, there is a wider range of approaches that can be adopted in order to achieve a fair or equitable distribution of broadcasts between the parties or candidates. The main considerations are likely to be:

• a party's strength in previous elections
• the number of candidates it is fielding

There is usually a minimum allocation of time to all parties, or at least to those fielding a certain number of candidates. This is an attempt to address the criticism that an "equitable" approach is not very fair to new parties.

These calculations are more difficult to make in a presidential election, where a candidate may be standing for the first time. In Brazil, this is overcome by allocating broadcast time in the presidential election on the basis of a party's strength in parliament. In the second-round run-off, time is allocated equally.

South Africa

Broadcasting time is allocated on the basis of a combination of criteria: a minimum allocation to all parties, a portion on the basis of the number of candidates standing and a portion on the basis of past support. The latter is ordinarily measured on the basis of the number of seats held in the outgoing national and provincial legislatures. However, the Independent Broadcasting Authority may take account of opinion polls if it chooses.

Greece

The three largest parties in the previous Parliament are entitled to at least thirty-eight minutes weekly on televised programmes. Smaller parties with members in the previous Parliament are entitled to eight minutes weekly. Parties with no representation in the Parliament, but with a list of candidates in seventy-five percent of the electoral districts, are entitled to five minutes weekly. In addition, each of the three largest party is entitled to one forty-five minute broadcast.

Spain

Parties that did not win seats in the previous election have ten minutes' broadcasting time. Parties that won less than five per cent of the vote have 15 minutes' broadcasting time. Parties that won up to 20 per cent have 30 minutes and those that won more than 20 per cent have 45 minutes' broadcasting time.

United Kingdom

The formula for allocation of broadcasting time is reviewed by a committee of broadcasters and political parties at each election. It is roughly as follows: all parties fielding 50 or more candidates are allocated one free broadcast. The two main parties receive equal broadcasting time - usually about five ten-minute broadcasts. The third main party receives slightly less - usually four ten-minute slots. [1]

Israel

All parties contesting an election are given a basic allocation of 10 minutes broadcasting time. Parties that were represented in the outgoing Knesset (parliament) receive an additional three minutes for each seat they held. [2]

Turkey

All parties contesting the election are entitled to ten minutes broadcasting time. Parties with parliamentary representation may receive an additional ten minutes. In addition, the governing party is entitled to an additional 20 minutes, and the main opposition party to another ten minutes. [3]

[1] Brian Wenham "The United Kingdom: Impartial broadcasters and a Partisan Press", in Yasha Lange and Andrew Palmer (eds), Media and Elections: a Handbook, European Institute for the Media, Dusseldorf, 1995.

[2] Library of Congress, Law Library, Report for Congress: Campaign Financing of National Elections in Selected Foreign Countries. Washington, DC: July 1995, LL95-4, 95-1354: 58.

[3] Library of Congress, Law Library, Report for Congress: Campaign Financing of National Elections in Selected Foreign Countries. Washington, DC: July 1995, LL95-4, 95-1354: 194.

Criteria for Allocation of Direct Access Time

Applying criteria for allocating direct access broadcasts is primarily an issue when some consideration of equitability is applied, rather than simply allocating slots on an equal basis. However, in systems of "modified equality", such as in the Netherlands, the regulatory body may have some discretion to allocate additional time to the major parties.

In any system, the first criterion to be established is whether there is a qualification threshold. Even some equality-based systems (such as Denmark, Norway, and Japan) require a form of qualification - such as number of seats contested or a minimum of public signatures.

Equity systems will also have to decide on a qualification threshold. In new democracies, it is more likely that the threshold will be set low, because of the difficulty of knowing what level of popular support each party enjoys. Thus in South Africa, for example, all parties receive a minimum allocation. In long established democracies, the threshold is often higher. The threshold should usually be determined by the number of seats contested, rather than the number previously held, since the latter would be a great obstacle to the emergence of new parties. Hence in the UK, for example, the threshold is 50 contested seats - roughly seven per cent of the total.

Once the threshold has been established, the other two criteria that are usually taken into account in allocating direct access broadcasting are:

• How many seats are the parties contesting (or how many candidates are they fielding)?
• How much popular support have they enjoyed in the past?

In answering the first question, it is immediately clear that this will be determined to a considerable extent by the nature of the election and the electoral system. Presidential elections, for example, are likely to be far more equal in the allocation of broadcasting because they are generally based on a more individual competition than simply a difference of parties. Hence France allocates broadcast time in its presidential elections on a purely equal basis, although Brazil has done so on the basis of the level of parliamentary support for the candidates' parties.

In parliamentary elections, the nature of the voting system clearly determines how significant smaller parties are likely to be to the outcome, which may in turn determine what time allocation they receive. In a first-past-the-post system, a party that wins 10 per cent of the vote nationwide is likely to be completely marginal (and possibly unrepresented in parliament), while the same party in most proportional representation systems could be an important player. Thus the allocation of broadcasting time under the latter system is likely to tend towards greater equality, or at least a lower threshold for qualification.

But strangely, the classic first-past-the-post model, the United Kingdom, makes a conscious effort to compensate for the inequities of the electoral system in its allocation of time. Thus the third national party, the Liberal Democrats, which consistently receives parliamentary representation much lower than its share of the popular vote, nevertheless receives a time allocation that is actually proportionally higher not only than its number of parliamentary seats, but also than its vote.

An interesting recent approach is that developed in South Africa, a new democracy where the media regulatory body has devised a formula that:

• Gives all parties some access
• Allocates time on the basis of seats contested and presumed popular support
• Takes into account the fact that national and provincial elections are held simultaneously.

Timing and Length of Direct Access Slots

The timing of direct access slots is clearly of paramount importance. A broadcast when everyone is asleep or at work will be of little use to anyone. As with commercial advertising, everyone will aim for "prime time".

All this is obvious, yet it is surprising how often it is overlooked. In the 2000 Zimbabwe referendum campaign, the Yes vote campaign (supported by the government) almost invariably received slots at around the time of the main evening news. The No campaign had to go to court to get its own broadcasts aired - yet the ruling did not specify when these were to be aired, so they received less advantageous times.[1]

The issue may not only be when a slot is broadcast, but also what is on the other channels. In the 2000 presidential elections, Serbian television tried to reduce audiences for broadcasts by opposition candidate Vojislav Kostunica by scheduling them simultaneously with a popular soap opera.

Yet the issue can be exaggerated. In Chile's 1988 plebiscite, broadcasts were deliberately put out at obscure off-peak times in order to dampen down political enthusiasm. But a population denied any active political debate for 15 years was not to be deterred and watched them eagerly.[2]

The key point is equality of access to the best slots, whenever these may be. A popular way of achieving total equality is by drawing lots - an approach that is most common when there is also equality in the amount of time allocated.

A mechanism that found favour in the past was the simultaneous broadcast of party election broadcasts on all channels. This approach has something to recommend it, but has been generally abandoned in favour of a philosophy where viewer choice is sovereign. In practice, the proliferation of television channels in many countries made it unenforceable.

A second issue is the length of broadcasts. There are two competing trends here. Traditionally, the purpose of law and regulations has been to ensure that slots are long enough for parties to get their message across.

But in the age of slick advertising and sound bites, it is increasingly felt that the 10-minute election broadcast is a thing of the past. In the United Kingdom, for example, the main parties are allocated five 10-minute slots - but only actually broadcast for five minutes of each of them. If the rules permitted they would no doubt take 10 five-minute slots, but they do not. So the parties prefer to forego half their time allocation in order not to repel the voters by going on at too great length.

In the United States, there are moves to ensure a minimum length for political advertisements in order to compel politicians to make appeals to the voters' reason rather than their emotions.

For the regulator, there are two alternative approaches. One is to specify precisely the time slot available - say a five-minute broadcast - and then it is up to the party to fill it. If they choose not to, then they lose the time not used. The second is to give an overall allocation of time that the party can then use as it chooses. The problem with the second approach is that it makes planning on the part of a broadcaster almost impossible.

A third approach might represent a compromise between the two. Parties could be given a total allocation of broadcast time in accordance with an agreed system. That time allocation could then be broken into different length time slots, allowing parties a mixture of lengthy and reasoned argument on the one hand and snappy advertising messages on the other.

[1] Media Monitoring Project Zimbabwe, A question of balance: The Zimbabwean media and the constitutional referendum Harare, March 2000.

[2] ARTICLE 19, Guidelines for Election Broadcasting in Transitional Democracies, London, 1994, p. 16.

Who Pays for Direct Access Broadcasts?

Party election broadcasts, as distinct from political advertising, are usually described as "free". But all this means is that the parties themselves do not pay for the time that is allocated to them. This leaves unanswered two questions:

• Who does pay for the time?
• And who pays to make the programme itself?

In practice there are two possible answers to the first question: either the broadcaster is required to provide the time for free, or the government or electoral authority will purchase the time from the broadcasting company. For public broadcasters, the answers will almost always be the first. The charter or regulations governing the public broadcaster will require them to provide this service. In some cases a similar public service obligation might exist for private broadcasting licensees. But in the latter case it is more common that a supervisory body will buy the time on the parties' behalf. This is what happens in Mexico, for example, where the Federal Electoral Institute buys and allocates 15 minutes a month of television and radio time for each party.

The second question - who pays for the programme itself - is altogether more complex. Usually, the answer is the party, although this in itself may be constrained by legal limits on campaign spending. Costs can be kept relatively low by the use of sympathetic personnel - most famously the Hollywood film directors John Schlesinger, Hugh Hudson and Mike Newell, who have made party election broadcasts for the main parties in Britain (although in each case the saving on the director's fee was probably more than offset by the high production costs).

If the party makes its own election broadcasts, this clearly favours the richer parties. This led South Africa's Independent Broadcasting Authority to prohibit television slots in 1999 on the basis that smaller parties could not afford to make them.

The alternative solution is for the public broadcaster to put production facilities at the parties' disposal. This was the approach in the early days of party political broadcasts, which were studio-bound and really just an extension of the old-fashioned ministerial address to camera. It has been revived in transitional democracies where new parties are unlikely to have either the funds or expertise to produce their own broadcasts.

Who Produces Direct Access Broadcasts?

In certain circumstances – especially transitional elections in poorer countries – political parties may have no facilities to make their own election broadcasts. A well-designed system will take account of this, making sure that parties have easy access to private or (more likely) public broadcasting studios where they can plan and record their material.

In Mozambique in 1994, a number of parties did not have the facilities to make their own election broadcasts and were unaware of the procedures for providing video cassettes to the broadcaster. The result was that their slots went out with a blank screen, or at most a caption urging viewers to vote for the party. [1]

In the Polish elections of 1990, by contrast, state-owned Polish television provided facilities for the parties to produce their broadcasts according to strictly defined criteria. It made available a studio for recording, or a camera team consisting of three technicians and a journalist. (The parties could decide not to have the journalist if they felt that his or her presence would compromise their own editorial control of the broadcast.) The role of the team was purely technical:

Any technical assistance rendered by Polish Television staff which has a bearing on the substantive contents of the broadcast may take place only in the presence of a member of the candidate's staff. Proper note of this must be entered into the production log.

The candidate's staff were allowed to be present at any time during the recording, editing or post-production phases of preparing the broadcast. [2]

[1] Diana Cammack, Election reporting: a practical guide to media monitoring, ARTICLE 19, London 1998, p. 4.

[2] Karol Jakubowicz, "Poland and the 1993 Election Campaign: Following the Line of Least Resistance" in Yasha Lange and Andrew Palmer (eds), Media and Elections: a Handbook, European Institute for the Media, Dusseldorf, 1995.

Direct Access in Referenda

In a referendum or plebiscite, many of the complex questions related to allocating of broadcasting time fall away. The choice is a straight yes or no. Since the question will not have been asked before, there can be no question of taking into account previous voter opinion on the matter. Equality and equity coincide: both sides should have equal time to put across their arguments.

This was the conclusion of the UN Technical Team on the 1993 Malawi Referendum:

In the case of government-owned media it is customary that equal access, both in terms of timing and length of broadcast, should be given to the competing sides.[1]

Such also was the practice in, for example, the 1988 Chile plebiscite on the restoration of democracy.

However, things may be slightly more complex. Commonly, more than one party may line up on each side of the referendum debate – indeed, sometimes parties may be divided within themselves. Who, then, has a right to speak for each side?

In 1979, a Scottish court had to determine just such an issue in a referendum on devolution of political power. Both the main UK parties were divided on the issue, with members campaigning for both sides in the referendum debate. Broadly speaking, three main parties in Scotland lined up in favour of devolution and one against. The court concluded, nevertheless, that the Yes and No camps should have equal time - party support was irrelevant.[2]

Yet more complex issues will arise if different groups support the same proposition in a referendum but from a different perspective and organized in different campaigns. In that case, some of the normal allocation criteria used in elections will have to be brought into play to determine how much broadcasting time each group is allocated. However, the overall principle of equality between the two sides will not be affected.

[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. 27.

[2] Wilson v. Independent Broadcasting Authority, 1979 SLT 279.

Paid Political Advertising

Whether or not a country allows paid political advertising in broadcasting is likely to depend heavily on the traditions in its style and ownership of broadcasting and consequently the type of regulatory system that has evolved.

Some may regard it as curious that the issue of paid advertising for political parties or candidates in newspapers is scarcely controversial. The practice worldwide is almost universally the same: advertising is permitted, subject only to other limitations such as campaign spending ceilings and sometimes restrictions on content.

However, the fact that many countries have followed a different course with regard to political advertising on radio and television can be put down to two factors:

• First, the cost of advertising on radio or, especially, television is usually much greater than in the print media.
• Second, broadcasters are either publicly owned or receive their share of the frequency spectrum from a public body.

Of course, neither of these factors in itself automatically leads to a prohibition on political advertising over the airwaves. But they do perhaps explain why the approach has been different.

Broadly speaking, countries with a long tradition of public ownership of broadcasting, such as France, the United Kingdom, and Denmark, have tended to be hostile to paid political advertising. Those with a stronger commercial broadcasting tradition - the United States represents the extreme - have tended to regard political advertising as natural. It is notable that the European country where commercial broadcasting is most dominant - Finland - should also be the one where unrestricted political advertising is permitted.

This is the rough tendency, but there are many exceptions. Canada, for example, which has a public broadcasting tradition similar to the British, has an approach to political advertising much closer to its southern neighbour. Nor is the issue necessarily to do with whether a public broadcaster accepts commercial advertising. The British Broadcasting Corporation has always maintained a strict prohibition on commercial advertising, but French public broadcasting has permitted it since the 1960s. Each maintains an equally strict embargo on political advertising.

A common pattern, of course, is for the public broadcaster to give free direct access slots according to predetermined criteria, while private broadcasters sell advertising slots to parties and candidates, often according to different criteria. This is the case, for example, in Germany, and was too in Italy immediately after the legalization of private commercial broadcasting.

The Argument For Political Advertising

The argument in favour of paid political advertising is a freedom of speech argument and finds its apogee in the United States. There it is generally assumed that the First Amendment to the Constitution - prohibiting Congress from passing laws "abridging" free speech - protects paid advertising. Indeed, existing campaign contribution limits are often criticized as being in violation of the First Amendment.

The assumption behind this argument is that being allowed to spend money on advertising equalizes the debate between incumbent and challenger. This does not take account of the problem that being in possession of abundant campaign finance is not necessarily the same as having worthwhile political ideas. A party representing the aspirations of the poor and underprivileged may be at a disadvantage under such a system. It is also very much a First World argument that does not readily transfer to countries where wealth is primarily generated by government office or political patronage. In many countries, the ruling party is the richest and can afford the most advertising.

The Argument Against Political Advertising

The argument against paid political advertising is an equality argument: all parties or candidates should have equal or fair access to direct broadcasting regardless of the state of their campaign finance. Countries that favour an equal direct access system almost always have a prohibition on paid advertising. But so do many, such as the United Kingdom, which operate "equity" systems.

Another unrelated argument against paid advertising is that it increases the "dumbing down" of political debate. It is clear that paid commercials are generally much shorter in length than free direct access slots and generally tend to sell a candidate or party (or denigrate the opponent) rather than develop an argument. The difference in length is striking: the average length of paid advertising slots in Finland is 10-25 seconds and in the United States 30-60 seconds. In France, the United Kingdom, and Denmark the length of free slots ranges from five to 10 minutes.

What is striking, however, is the number of countries that have a mixture of paid and unpaid direct access broadcasting. Usually, the approach will be to allocate parties a basic share of free direct access time, which can then be topped up with paid advertising if the party chooses to do so and can afford it.

[1] ee, for example, Nadine Strossen, "Freedom of Speech: Issues for a new election and a new century", Media Studies Journal, Winter 2000, http://www.mediastudies.org/nq5.htm.

[2] Christina Holtz-Bacha and Lynda Lee Kaid, "A Comparative Perspective on Political Advertising: Media and Political System Characteristics", in Lynda Lee Kaid and Christina Holtz-Bacha (eds.), Political Advertising in Western Democracies, Sage Publications, London/Thousands Oaks, 1995.

Countries that Allow Paid Political Advertising

The general characteristic of systems in which there is political advertising is that advertising is unlimited - parties can buy as much as they can afford - whereas free direct access broadcasts are limited to a pre-determined share.

But this is not always the case, and a number of countries that operate a mix of paid advertising and free direct access limit the share of the former in proportion to the latter. Canada has a system in which a ceiling is set on the amount of advertising time that each party can purchase, on a basis that is closely akin to systems elsewhere for allocating free direct access time.

It is, in fact, relatively unusual to find a system that is characterized solely by paid political advertising with no free direct access. For many years Finland was an almost solitary example in Europe, with most other examples to be found in the Americas.

Venezuela, for example, allows no political advertising on the two government broadcasting channels, but unlimited advertising on private commercial channels. Political parties generally appear to be prepared to pay the same rates as other advertisers. There is a state subsidy for spending on advertising. The electoral law authorizes the Supreme Electoral Council to contribute to parties' advertising campaigns. The way this has generally worked is that after the election the Supreme Electoral Council gives grants to parties that obtained at least 10 per cent of votes cast in congressional elections.

An extraordinary characteristic of the Venezuelan system is that the incumbent administration is also allowed to buy advertising. The administration's commercials are not allowed by law to promote the ruling party - but the government's and the ruling party's commercials can be broadcast one after the other creating a strong argument in favour of the incumbent. In 1978, the government spent almost as much on television advertising as the two main political parties. Venezuela has an extremely high level of spending on political advertising - according to some estimates the highest per capita rate in the world. [1]

The United States is the best-known example internationally of a system of paid political advertising. But contrary to first impressions, the US system is far from unregulated. Legislation on campaign financing has a particular impact on television advertising, which is by far the largest item in the campaign budget.

But that is not by any means the full extent of regulation. The Federal Communication Act of 1934 as amended requires broadcasters to offer to sell equal time to all candidates for federal office. This must be available at the lowest rate charged to non-political advertisers. Equal opportunity means that stations that sell time to one candidate must give the opportunity to others. [2] These are important principles, which ensure that political advertising does not entirely become the preserve of those with the biggest campaign war chests. They have been emulated in political advertising regulations worldwide:

• Advertising is offered at the lowest rate.
• If advertising space is offered to one candidate it is offered to all.

[1] Howard R. Penniman and Austin Ranney, "The Regulation of Televised Political Advertising in Six Selected Democracies", Committee for the Study of the American Electorate, n.d.

[2] Robert M. Entman, "The Media and U.S. Elections: Public Policy and Journalistic Practice", in Yasha Lange and Andrew Palmer (eds), Media and Elections: a Handbook, European Institute for the Media, Dusseldorf, 1995

A Mixed System of Advertising and Free Access

A number of countries provide for a mixture of free direct access broadcasts and paid advertising. This may be an effective compromise between the "freedom of expression" argument that will not allow prohibition of advertising and the "equality of opportunity" argument that says that all parties or candidates should have a voice.

Barbados, for example, has just such a mixed system. Parties and non-party candidates are allowed to buy radio and television advertising to top up their allocation of free broadcasts. But they can only buy slots up to a predetermined number, calculated on the basis of the number of candidates they are fielding. The system for determining this limit is in fact different from that used to allocate free broadcasts, but has the same effect. There is also a time limit on each advertisement (30 seconds on radio and 60 seconds on television).

In Montenegro, the regulations for state media in the elections provide for a mixture of paid and free advertising. Each electoral list is entitled to five minutes direct access time in total, of which two minutes are free and broadcast at times specified in the regulations. The remaining three minutes are purchased at market rates and their broadcast time is a matter of arrangement between the election list and the broadcaster. Presumably, this means that variable rates would apply (as they would for commercial advertisers) depending on when the political advertisement was broadcast.

The Canadian system is also, in effect, a mixed one. Between elections, there is an allocation of free party political broadcasts: 60 per cent for the opposition parties and 40 per cent for the governing party. The exact allocation of these broadcasts is generally made by the parties themselves (although the Canadian Broadcasting Corporation will make the allocation if the parties cannot reach agreement). In addition to these "free time broadcasts", there are occasional ministerial and prime ministerial broadcasts. There is an opposition right of reply to the latter, but not the former. In election periods, however, this system is overlaid by one of paid political advertising.There is a given amount of advertising time available, which is allocated to the parties according to a formula that they agree among themselves. They are then allowed to purchase advertising time up to the limit of their allocation.[1]

[1] Howard R. Penniman and Austin Ranney, "The Regulation of Televised Political Advertising in Six Selected Democracies", Committee for the Study of the American Electorate, n.d.

Political Advertising and Campaign Spending Limits

An indirect form of regulating paid political advertising in many countries is a limit on campaign spending. Such limits apply widely, and, since television advertising will usually be the largest item in the campaign budget, it is here that the greatest impact will be felt. In Canada, for example, spending limits mean that parties can never use up their allotted share of advertising time. Sometimes these limits are made explicit by law. In the 1994 South African election, for example, it was stated that all political advertising was subject to any legal limitations on campaign spending.

Venezuela, estimated to have the highest per capita spending on political advertising in the world, not surprisingly has no limit on spending. The United States, generally regarded as the home of political advertising, has a fairly complex system to regulate campaign financing, especially in presidential elections. The 1971 Federal Election Campaign Act (amended in 1974 and 1976) established equal federal financing of presidential elections and federal subsidy of primaries. It also set ceilings on what candidates could spend on TV advertising, although these were removed when the law was amended. In an important 1976 case - Buckley v Valeo - the Supreme Court upheld the principle of public financing but struck down limits on spending by "political action committees" if these were independent from the presidential campaigns themselves. The court also decided that there would be no limit on spending by individuals.[1]

The effect of this is to create routes whereby presidential campaigners can bypass the limitations. Donors can give money to parties or political action committees rather than to the candidates themselves. It also means that a wealthy individual, such as the independent Ross Perot in 1992, can stand without any spending cap at all.

All political advertisements in the United States must carry a disclaimer indicating who paid for them. [2]

Japan is another country that makes the distinction between parties and candidates in its control of campaign spending. Candidates themselves are not permitted to buy broadcasting time. Parties, on the other hand, can buy advertising time, provided that their advertisements call for support for the party, not for specific candidates.

Controls on campaign finance can be used as a means of giving opportunities to poorer parties in an environment of paid advertising. In Mongolia's first parliamentary elections, for example, each party was allocated the same amount of free and paid time. But the government subsidized the paid time of the smaller parties.

It is sometimes proposed that this "topping up" option be used to equalize campaign spending - as a way of enforcing spending limits but not in a heavy-handed manner. The idea would be that spending limits are set. If one party exceeds them, then the others would receive a top-up out of public funds.

[1] Howard R. Penniman and Austin Ranney, "The Regulation of Televised Political Advertising in Six Selected Democracies", Committee for the Study of the American Electorate, n.d.

[2] Robert M. Entman, "The Media and U.S. Elections: Public Policy and Journalistic Practice", in Yasha Lange and Andrew Palmer (eds), Media and Elections: a Handbook, European Institute for the Media, Dusseldorf, 1995.

Regulation of Content of Direct Access Material?

The question arises whether the regulatory body should attempt in any way to control the format or the content of direct access programmes, whether they be free party election broadcasts or paid political advertising. There is a strong presumption against any such regulation, given the general hostility of international law to prior censorship of any kind. The arguments in favour of some sort of regulation fall into two categories:

• Regulation of format - usually in order to ensure that a serious political message is conveyed.
• Regulation of content - in order to prevent the broadcast of improper or illegal material.

The latter argument clearly relates closely to the question of the policy adopted on issues of "hate speech". It also relates to the question of how far the media themselves are liable in law for the content of political messages that they broadcast. It is often the media themselves who are most vocally in favour of restrictions on the content of political broadcasts if they fear that they will be subject to legal action as a consequence. They favour a system, such as that in Israel, whereby party broadcasts have to be approved by the Electoral Commission in advance of being aired.

In 1994 the South African Independent Media Commission addressed this issue in a slightly different way. The law laid down that a party election broadcast should not contain material that might reasonably be expected to expose the broadcasting licensee to legal liability. In other words, the onus was on the parties to ensure that their material complied with the law, even though the broadcaster could be liable if illegal material were broadcast. [1]

Barbados law (which is typical of that in a number of countries) sets out a number of specific prohibitions:

• any matter in contravention of the laws of Barbados
• any abusive comment upon any race, creed or religion
• any obscene, indecent or profane matter
• any malicious, scandalous or defamatory matter.

The third of these opens up a particularly perilous area. Attempts to regulate on grounds of "good taste" are notoriously difficult and, of course, highly culturally specific. Few countries, for example, would share the Finnish approach to direct access broadcasting, where negative campaign messages are strictly prohibited - yet party representatives appear on screen in the nude, within the traditions of Finnish sauna. [2]

Clearly the distinction between regulation of form and content is a slightly artificial one. Some countries propose a minimum length for political broadcasts in order to ensure that there is a serious argument conveyed and not just an advertising message. But others prescribe a maximum limit: Barbados, for example, limits advertising to a maximum of 60 seconds.

Venezuela has, in most respects, an extremely unregulated system of political advertising. Yet the Supreme Electoral Council (SEC) has the power to order the withdrawal of an advertisement that is not in "good taste" or that significantly misrepresents the position of an opponent. The SEC has also prohibited the use of subliminal propaganda or other means of "hidden psychological persuasion" in television political advertising. (This led in turn to an overall ban on subliminal advertising in Venezuela.) [3]

France, which has a far greater degree of regulation in these matters than most advanced democracies, has various formal restrictions that are aimed at affecting the quality of the message conveyed. In the 1988 presidential election, for example, only one of the broadcasts allocated to each candidate could be filmed outside the television studio and only 40 per cent of each broadcast could contain archive film footage. The aim of these restrictions was to ensure that there was a high element of the candidate presenting policies to camera. The regulations also provided that candidate broadcasts could not use archival footage without the consent of those who appeared in them - clearly a way to forestall personal attacks on opponents. [4]

Some countries follow the Finnish example and have an explicit prohibition on personal attacks. (Finland also prohibits product advertising in political broadcasts.) [5] In Costa Rica the Supreme Election Tribunal can order a negative political advertisement off the air if it comprises a personal or unverifiable attack. In one such case in 1990, an advertisement suggested that the incumbent candidate's law degree was acquired illegally. The Tribunal halted the broadcast of the advertisement after one showing.

The French have further regulations that are more content-related and aim, in particular to reduce the incumbent's advantage. For example, in 1988 presidential candidates were not allowed to use the flag or national anthem, or to show the places where they perform their official duties - in other words, the President would have to broadcast from a studio like his opponents and not from the Elysee Palace.[6]

Probably no country has agonized over these matters more than Germany, with its history of "hate speech" and extremist politics and its tight constitutional restrictions on certain types of political advocacy. Yet in political advertising it is accepted that certain types of false statements may be communicated. The Federal Constitutional Court has stated that these are not a basis for refusing political advertising. [7]

It has been broadcasting stations that have tried to refuse material from some parties, especially neo-Nazis. The Federal Constitutional Court partially supported such an approach:

"It is not within the power of a broadcasting station to deny an election slot with the argument that its contents appear unconstitutional, since the competence to decide upon the constitutionality of a party and its announcements lies only with the Federal Constitutional Court. The station has however the right to expect that the party uses its airtime only for legal campaigning, and in particular that no relevant and evident breach of criminal law will take place. The station is therefore entitled to control the content of the slot and - in the case of such a breach of law - to refuse transmission." [8]

[1] Article 29, Independent Media Commission Act, 1994.

[2] Tom Moring, "The North European Exception: Political Advertising on TV in Finland", in Lynda Lee Kaid and Christina Holtz-Bacha (eds.), Political Advertising in Western Democracies, Sage Publications, London/Thousands Oaks, 1995.

[3] Howard R. Penniman and Austin Ranney, "The Regulation of Televised Political Advertising in Six Selected Democracies", Committee for the Study of the American Electorate, n.d.

[4] Anne Johnston and Jacques Gerstle, "The Role of Television Broadcasts n Promoting French Television Candidates", in Lynda Lee Kaid and Christina Holtz-Bacha (eds.), Political Advertising in Western Democracies, Sage Publications, London/Thousands Oaks, 1995.

[5] Tom Moring, "The North European Exception: Political Advertising on TV in Finland", in Lynda Lee Kaid and Christina Holtz-Bacha (eds.), Political Advertising in Western Democracies, Sage Publications, London/Thousands Oaks, 1995.

[6] Anne Johnston and Jacques Gerstle, "The Role of Television Broadcasts n Promoting French Television Candidates", in Lynda Lee Kaid and Christina Holtz-Bacha (eds.), Political Advertising in Western Democracies, Sage Publications, London/Thousands Oaks, 1995.

[7] Helmut Druck "Germany: Equality within the Constitution", in Yasha Lange and Andrew Palmer (eds), Media and Elections: a Handbook, European Institute for the Media, Dusseldorf, 1995.

[8] Cited in Ibid.

Government's Duty to Inform - Voter Information

International law and standards increasingly recognize the obligation of governments and publicly funded media to educate and inform voters about fundamental aspects of the electoral process.

These might typically include:

• how, when, and where to register as a voter
• how, when, and where to inspect the voters' roll
• how to make a complaint about the voters' roll or any other aspect of the election
• what the election is for - who is being elected
• what are the constituency boundaries
• where and when to vote
• how to mark the ballot so that the vote is considered valid
• that the vote is secret

It is essential that all voters are in possession of the basic information that they need to exercise their democratic rights. The obligation on governments to ensure participation in democratic elections "without discrimination" means that they are obliged to make a special effort to inform those who are at a particular disadvantage in exercising their democratic rights. Such groups may include:

• women
• racial, national, or ethnic minorities
• the poor, especially those who are illiterate
• people with disabilities

One of the strongest arguments in favour of public ownership of sections of the media is that this gives the public authorities the means to conduct programmes of information and education. Voter information, voter education, and civic education are among the most important examples of the public service role. National broadcasting stations, which are accessible to the illiterate and often to the relatively disadvantaged, play an especially important part in this.

However, this is also where the obligation on publicly-owned media to behave impartially becomes especially important. It is a fundamental principle of voter education that the information provided should be impartial and not favour any of the participants in the election.

Balanced News Coverage

International law establishes the general obligation on publicly-funded media to report fairly on the election process. In many countries, this obligation will be set out in specific legislation such as the law relating to broadcasting or the electoral law itself. Elsewhere, there may be a general obligation of balance and fairness established in the founding legislation of the publicly-funded media, but how this works in practice is left up to voluntary self-regulation.

The British Broadcasting Corporation, with its "stopwatch rule", is an example of the latter approach. The corporation keeps a record of the time allocated in news bulletins to the different political parties, with the aim of keeping the balance in conformity with the proportional allocation of time for party election broadcasts. The principle of record-keeping is an important one: the public broadcaster (or any other, for that matter) should know exactly what it has broadcast in order to be able to answer any subsequent complaints.

Two transitional democracies are examples of countries that have taken a far more regulated approach towards the public broadcaster. The rationale for this is that the state broadcaster in a new democracy will have little experience of operating independently of government and requires more clearly defined rules to enable it to report in a balanced manner.

Malawi

In Malawi in 1994, the electoral commission set out very detailed guidelines, which dealt among other matters with news coverage by the publicly-funded (and government-controlled) Malawi Broadcasting Corporation (MBC). The MBC was

required to provide fair and balanced reporting of the campaigns, policies, meetings, rallies and press conferences of all registered political Parties during the period of campaigning and thereafter to provide news of the electoral process up to the close of poll.

The guidelines went on to extend this requirement of balance to other special election programming such as debates and phone-ins. They set out extremely detailed provisions for the format and organization of these special programmes.

The guidelines imposed an obligation on the MBC to ensure that parties did not use other programmes to campaign. (In fact this did occasionally happen - for example, when football matches were used as an occasion for songs in praise of the incumbent president.)

And the guidelines contained a strict injunction to the staff of the public broadcaster:

MBC staff, as public service broadcasters, may not broadcast their own political opinions. Any commentaries or assessments must be clearly identified as such and carefully balanced to avoid bias.

Montenegro

Likewise, the Montenegrin Assembly in 1998 agreed a resolution on the role of state media in election campaigns that established a general obligation on the staff of the public media:

Each editor or presenter of the political-news programs and special programs or columns in the public media founded by the Republic of Montenegro is obliged to independently and objectively present all election list submitters and their candidates throughout the election campaign and to ensure impartiality in relation to all political, social, ethnical/cultural and other agendas presented therein.

But the resolution goes beyond a general obligation to prescribe in some detail how this objectivity is to be achieved. As well as setting out standards for special debate programmes and reporting of opinion polls, the resolution removes certain call-in and panel discussion programmes from the regular schedule and obliges the public media to

observe the principles of professionalism and journalist ethics and abstain from inviting/hosting leaders or popular members of the parties to their regular and thematic programs.

The resolution states in great details how many reports the television, radio, and state newspaper must carry. For example:

The Montenegrin Television network and Montenegrin Radio network are obliged to provide 5 footage and/or sound recordings respectively with excerpts from speeches of participants in the election rallies of election list submitters and this shall be increased for one footage and/or sound recordings each on every fourth election rally held.

And so on.

This type of highly detailed regulation of content raises a genuine dilemma. The need for such prescriptions arises because of the history of bias and unprofessional reporting by state and government-controlled media. On the other hand, the impulse towards microscopic content-regulation is itself part of the legacy of political dictatorships. How far regulatory authorities should prescribe how the publicly-funded media report - and how far the media will best learn by making their own mistakes - is an imponderable question to which every new democracy will have to find its own answer.