Law or Regulations on Media During Elections

Many countries have nothing in their laws to govern the behaviour of the media during elections and see no reason why they should. Others see some measure of special media regulation during an election as being part of the process of "levelling the playing field". Still others are somewhere in the middle, with a system of voluntary self-regulation, whereby the media agree to adopt a series of self-limiting regulations because of the special demands of an election period.

Even in long-established democracies, there are widely divergent views on how far the media should be subject to formal regulation in election periods. The US tradition is one of minimal regulation, while the European one tends more towards the establishment of enforceable rules. One reason for the difference is that Europe, unlike the United States, has a history of state involvement in domestic broadcasting. The implication of this is that the precious resources of broadcasting and the frequency spectrum should be used fairly to reflect the views of the different candidates and not improperly favour the ruling party. As in its broader approach to media freedom issues, the US view is generally that the "marketplace of ideas" is most readily achieved by recourse to the economic marketplace. Thus, the pluralism of many privately owned media is assumed in itself to ensure that the full spectrum of political views find their voice.

But whatever the differing political culture as regards media regulation, it is generally acknowledged that the media have a vital role to play in communicating information to the electorate. This makes it rather surprising that so few electoral laws deal to any great extent with the media. The absence of formal statutes or regulations might indicate a mature media environment in which there is a free interchange of political ideas in the press and over the airwaves and where every party has fair access to the media to get its ideas across. Or it might not.

Zimbabwean electoral law, for example, makes no mention of the media at all. In every election in the country's history, the state has had a monopoly of broadcasting (which is under tight government control) and, for most of that time, a monopoly of the daily newspapers too. The absence of any specific regulation of the media in elections, far from "levelling the playing field", has allowed the government to "move the goal posts". For example, the refusal of the Zimbabwe Broadcasting Corporation (ZBC) to run opposition advertisements during a referendum in February 2000 prompted the opposition to seek a High Court order against the broadcaster. They succeeded in doing so, but arguably it should not have been necessary. In subsequent parliamentary elections, the ZBC decided not to run political advertising at all - until election day, when it broadcast advertisements for the ruling party, too late for other parties to respond. Under election law (though possibly not under Zimbabwean broadcasting law), the ZBC was entitled to do this. [1]

In situations where large sections of the media are either publicly owned or under the control of one particular political interest group (this may in practice be the same thing), then it probably makes sense for the law to set out some basic rules for election coverage. These will often differ in their provisions for public and privately owned media. The areas that the law (or subsidiary regulations) may cover include the following:

• how time or space will be allocated to candidates and political parties
• whether paid political advertising is to be permitted
• what duty the media have to carry voter education material or candidate debates
• whether there is to be a right of reply to factual misrepresentation in the media
  
  

In addition, the regulations may deal with other more specific issues such as:

• news blackouts or "reflection periods"
• restrictions on reporting of opinion polls
• policies on "hate speech" and defamation
  
  

The law or regulations will probably create a statutory body with responsibility for oversight of the media during election, or will assign that responsibility to some existing body such as the electoral commission or broadcasting regulator. Included in the law, there is likely to be some speedy mechanism for dealing with complaints about media coverage.

[1] Media Monitoring Project Zimbabawe. Election 2000: The Media War, Harare, 2000, p. 11.

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Election night 07/06/2009 by European Parliament is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.0 Generic License.

Who Should be Involved in the Drafting Process?

Laws are made by the legislature, so in principle the answer to this question is simple. In practice it is less so. Any law that "regulates" the media is profoundly sensitive, even when the purpose of regulation is to ensure pluralism in the media and a full voice to different political viewpoints.

In any event, good legislative practice involves consultation and the following are the main stakeholders to be consulted in drafting laws or regulations on the media and elections:

• The media themselves - directly, as well as through professional bodies and trade unions.
• The political parties - since part of the purpose of regulation is to ensure that they have fair access to the media.
• Any existing regulatory body, whether it be a broadcasting regulator involved in the distribution of frequencies or a media council responsible for the development and enforcement of professional standards.
• Election administrators - many aspects of the media's work during elections depend on a close working relationship with those responsible for supervising and administering the election.
• The electorate - since it is they whose information needs are ultimately at stake. To consult "the electorate" as a whole is clearly problematic, but it should be possible to identify representative organizations, for example of those who may have special information requirements. These might include national or ethnic minorities, women, the illiterate or people with disabilities.

A Specified Campaign Period?

If there is to be some regulation of what the media may or may not do during an election, then this is likely to apply to a specified campaign period. There will be a given period of official campaigning during which the regulations will apply, while otherwise normal practice will prevail. This is logical, perhaps, but can still be rather problematic.

One issue is voter education. Information on issues such as voter registration will usually need to be communicated to the electorate well in advance of the official campaign. Regulations will be aimed to ensure that this information is communicated in an accurate and impartial manner.

Voters may be just as much influenced by what they learn from the media at an earlier period. Media monitoring teams, for example, would always start their work well in advance of the official campaign period.

Political wisdom (and experience prior to the 2000 election) in the United States has it that the candidate who is leading on Labor Day (in September) will win the presidential election (in November). So nothing that happens in the final two months of the campaigning (longer than most countries' official campaign period) has much influence. The American approach is to have no designated campaign period at all - indeed roughly two years out of every presidential term are taken up with campaigning. But this would not suit most countries.

The opposite extreme is represented by Israel, where the electoral law relating to media coverage covers a time frame of 150 days before the election - that is, nearly five months. During the 30 days immediately before the election, no campaigning is permitted in cinemas or on television, although there are no such limitations on radio.

And few countries have election periods quite as closely defined as Estonia, where the law relating to the obligations of broadcasters in the election creates a clearly separated pre-election and election period, with the latter then subdivided into four further periods, each with its own different reporting rules: the application period, the election campaign, the voting period, and the period of determining and publishing the election results.

But the application of such strict regulation presupposes that there will be a set date for the election. In many countries, particularly those that have an electoral system based on the British one, choice of the election date lies with the incumbent head of government. Alternatively, in most systems, an election may be precipitated by an event such as parliamentary vote of no confidence. In such cases, it will be impossible to apply media regulations that extend beyond a fairly limited campaign period.

The best option, perhaps, is for the system of electoral media regulation to be well meshed with the general system of media regulation - ensuring that the media are pluralistic, vibrant, professional, and free from censorship at all times, not just during campaign periods.

[1] Akiba A. Cohen and Gadi Wolfsfeld, "Overcoming Adversity and Diversity: The Utility of Television Political Advertising in Israel", in Lynda Lee Kaid and Christina Holtz-Bacha (eds.), Political Advertising in Western Democracies, Sage Publications, London/Thousands Oaks, 1995.

Different Obligations of Public and Private Media

What we refer to here as the "publicly owned" media covers a variety of different phenomena: from media that are under tight government control of their editorial content to those that are funded out of money raised from taxes and licence fees, but with a statutory guarantee of their total independence from the government of the day. Most probably lie somewhere in between. But what they have in common is that the media or election law usually treats them all similarly - and as distinct from the private media, which are held to have different obligations.

Public media, by virtue of their source of funding, are a resource for the entire electorate. It is generally accepted that they should not be politically partisan in their editorial coverage. This was the view set out by the UN Special Rapporteur on Freedom of Expression, in his 1999 report, when he spoke of the obligation of the state-owned media to give voice to a variety of opinions and not to be a propaganda organ for one particular political party. Also, they have particular obligations to provide civic education, as well as to provide a platform for the different political parties.

This point is fundamental. Use of a public resource for partisan political campaigning carries all the same legal and ethical implications whether the resource is funds, a vehicle, a building, or a radio station. That is why there are so often clear laws or regulations protecting public media against government interference.

The obligations of the private media are far fewer. The essence of a free media environment is that broadcasters and journalists are not told what they may or may not say or write. The best guarantee that the variety of political ideas are communicated freely and accurately is often understood to be for the media to be allowed to get on with their job unhampered. But this does not mean that private media have no obligations at all. Professional journalistic standards will demand accurate and balanced reporting, as well as a clear separation of fact and comment.

Broadcasting stations usually have their licences allocated by a public body. This will often come with terms attached about whether they are allowed to support any political party; what, if any, news coverage they are allowed to broadcast; and other conditions such as whether they have an obligation, for example, to broadcast public service announcements such as voter education spots.

Likewise, any general laws or regulations relating to media reporting will probably apply equally to both public or private media: for example, provisions relating to "blackout" periods before the vote or the coverage of opinion polls. Similarly, general legal provisions such as the law of defamation - although they may be somewhat modified in their effect during the campaign period - will still apply equally to both public and private media.

Provisions that Affect Both Private and Public Media

Although the regulatory system will probably make some distinction between the publicly and privately-owned media, a number of aspects of the law or regulations governing the media in elections are likely to affect both sectors. These may include:

• an expedited procedure for hearing complaints against the media by the public or political parties.
• any regulations relating to the reporting of opinion polls.
• policies relating to "hate speech", defamation, media liability for the statements of politicians and other related issues.
• any policy on news blackouts before or during the election.
• journalists' right of access to election events.
• accreditation of journalists.
• provisions to ensure the safety of journalists.

The regulatory authority may place different obligations on the private and public media over matters such as whether they carry voter education or direct access materials. But the usual practice is that where the private media carry such coverage - even when they are not obliged to - they should conform to the same standards of equity and impartiality as the public media.

Implementation Mechanism for Media and Election Regulations

One of the most important practical aspects of the law or regulations on media in elections is who is responsible for implementing it. There will often be much greater day-to-day contact between editors and the regulatory authority responsible for media during elections than there would normally be with, for example, a broadcasting regulator. The relationship is likely to be (or at least should be) a collaborative one.

There are several possible approaches that can be taken:

• An existing regulatory body may be given responsibility for the specific issues that arise during election periods.
• The media may set up their own regulatory body, possibly in collaboration with the political parties themselves.
• The existing electoral supervisory body, such as an electoral commission, may take on this responsibility, sometimes through a specialized sub-committee.
• A specialist body may be set up specifically to regulate the media during elections - an unusual solution that was adopted, for example, in South Africa's first democratic elections in 1994.
• The responsibility may be assigned to the judiciary.

This presentation is inevitably a little schematic. It is quite common for different aspects of electoral coverage to be regulated by different bodies. In Poland, for example, regulating the broadcasting of free direct access slots is the responsibility of the State Electoral Commission, while responsibility for campaign coverage rests with the usual broadcasting regulator, the National Broadcasting Council. [1] The advantage of such an approach is that it separates areas where the regulator may have to develop strict and binding rules from those matters of professional practice that are best left to the media themselves to determine. The disadvantage is that two different regulatory bodies are operating in two closely related areas, with the danger that they may step on each other’s toes.

Whatever system is adopted, the media (and anyone else affected, such as an individual complainant) will have a right of appeal to a higher independent body, usually a court of law.

[1] 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.

Implementation Mechanism: Existing Media Regulatory Body

Often an existing regulatory body will take on the function of supervising aspects of media coverage of elections, either on its own or in conjunction with the election administration itself.

This was the approach taken, for example, in the South African elections in 1999. The Independent Broadcasting Authority (IBA), the constitutionally mandated body that regulated all public, private, and community broadcasting, issued regulations governing a series of issues:

• Advertising and election broadcasting
• Timing of election broadcasting
• A formula for allocating election broadcast time to different parties
• General observations on the quality of coverage expected.

The latter section includes this general observation:

Every broadcaster who transmits news or current affairs programmes in respect of the elections shall do so in an impartial and objective manner and in a manner which treats all parties fairly.

In an annex to the regulations, the authority went on to elaborate what were the responsibilities of broadcasters (and the role of the IBA):

The Authority does not intervene in the news and programming operations of the broadcasters. Broadcasters' role during elections does not differ from their normal journalistic role during non-election periods. Normal ethical considerations will continue to apply. A distinguishing feature of the election period is the obligation to achieve equitable coverage of political parties without abdicating news value judgments.

Italy is another country where the existing media regulators have principal responsibility for supervising media coverage of elections. In that case, there are two separate bodies: a parliamentary commission that has responsibility for public broadcasting, and a Guarantor for radio, television, and the press, who is responsible for the privately-owned media. Both institutions make regulations governing coverage by the respective media sectors in elections.

Implementation Mechanism: Media Self-Regulation

Many in the media would see a system of self-regulation in elections as an ideal solution. This clearly works best where there are well-entrenched independent media and a long tradition of democratic elections, so that the solutions adopted to the problems of election coverage are sanctified by long-established practice.

Perhaps the best-known example of this approach is in Britain, where direct access Party Election Broadcasts are allocated by a joint committee of broadcasters and political party representatives. This is a strange hybrid solution, since the requirement for Party Election Broadcasts is established in law. The broadcasters then use the rough division of direct access broadcasts as a guideline for measuring their own allocation of time to the different parties in the course of news programmes.

Denmark also has a self-regulating system. The law forbids paid political advertising but says nothing about how (or whether) other forms of direct access broadcasting should be allocated. In practice, the public Danmarks Radio has allocated direct access slots equally between all parties running for parliament. This approach has been reinforced by decisions of the Ombudsman and Supreme Court, but is essentially voluntary. Danmarks Radio also traditionally broadcasts a panel debate involving all political parties. Also, on the last day before the election, television has been kept free of election broadcasts. However, the advent of private independent television has led to some changes in this tradition: the new TV2 also held a pre-election panel debate, but excluded some smaller parties, while it also introduced election coverage the day before the vote. [1]

However, it has not only been long-established democracies that have adopted a self-regulatory approach. Before the independence elections in Namibia in 1989, the state-controlled South West Africa Broadcasting Corporation (as it was then known) invited political parties to join a standing committee to consult on election coverage. The committee agreed on a schedule of direct access slots, although it was not able to address the problem of biased news coverage.[2]

The state broadcaster in another Southern African country, Zimbabwe, also tried to adopt a self-regulating approach towards direct access slots. This was prompted by a series of highly controversial advertisements for the ruling party in the 1990 election, which many saw as being in poor taste. The Zimbabwe Broadcasting Corporation established a special committee before the 1995 elections in an attempt to avoid a recurrence of the problem. But, as in Namibia, it was not able to provide a serious solution to the problem of biased news coverage.

Hungary in 1990 also adopted a self-regulating approach. National television and the news agency, in collaboration with representatives of 12 political parties and the Independent Lawyers Forum, drafted a voluntary Electoral Code of Ethics. All the major parties adopted the code, along with most major news organizations.[3]

The state-owned Polish Radio and Television have adopted an approach that is similar to the BBC. Allocation of direct access broadcasting is the responsibility of the State Electoral Commission, but in their campaign news coverage, radio and television are answerable only to the National Broadcasting Council, the general regulatory body. The management of Polish Radio and Television have issued detailed guidelines to staff, including the following:

[Polish Radio and Television should] provide comprehensive coverage of the campaign and information about the candidates. News and current affairs programmes should provide extensive information about the parties, their election platforms and candidates, without any bias in favour or against any party and without promoting any set of political views. The main principle should be equality of access which puts channel controllers, programme departments and regional stations under an obligation to maintain records of the amount of airtime devoted to particular parties or candidates and to make sure that principle of equality is honoured.

[1] Yasha Lange and Andrew Palmer (eds), Media and Elections: a Handbook, European Institute for the Media, Dusseldorf, 1995, pp. 38-9

[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] ARTICLE 19, Guidelines for Election Broadcasting in Transitional Democracies, London, 1994, p. 38.

Implementation Mechanism: Electoral Commission

In many instances, responsibility for implementing regulations on the media during election campaigns rests with the main electoral supervisory body itself. This is often seen as appropriate if the electoral supervisory body has sufficient guarantees of independence, as well as the expertise to conduct the specialized work of media regulation.

In France, the Commission national de controle de la campagne presidentielle (CNCCP) was responsible for many years for regulating broadcasts in the presidential election campaigns. However, this responsibility shifted with the advent of privately-owned television stations. A new Commission national pour des communications et des libertes was set up to ensure a continuing public service content in private broadcasting, and it was to this body that regulation of broadcasting passed. However, the CNCCP retained responsibility for regulating election campaigns in the print media. [1]

Malawi offers an extremely positive example of an electoral commission in a new democracy that, by an effective show of independence, was able to ensure that the different political parties and candidates received a fair share of coverage from the government-controlled broadcaster. But it was able to do this not only through a display of political will, but also because it had established a specialized media sub-committee that had the experience and expertise to deal with the broadcasters.

Using the electoral supervisory body may be a preferable option in a small country where a plethora of overlapping institutions is not an attractive or cost-effective choice. In Barbados, for example, it is the Electoral and Boundaries Commission, the body with overall responsibility for the election, that is also responsible for regulating media coverage.

Nicaragua's 1987 Constitution established a Supreme Electoral Council as an independent branch of government - separate from the executive, legislature, and judiciary. Its responsibility includes applying the mass media law during elections and administering a complaints procedure. It established a specialized Mass Media Department to deal with broadcasters, in particular trying to negotiate changes in practices that are the subject of complaints.[2]

[1] Anne Johnston and Jacques Gerstle, "The Role of Television Broadcasts in 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] ARTICLE 19, Guidelines for Election Broadcasting in Transitional Democracies, London, 1994, p. 38.

Implementation Mechanism: Specialist Body

A number of countries have opted to create a specialized body whose responsibility is to regulate media during election periods - that is, it is neither a general election administration body nor a general media regulatory body. This option has been seen most often in transitional elections in which the role of the media is expected to be particularly problematic for some reason.

Thus, South Africa, in 1994, established an Independent Media Commission in addition to a widely respected Independent Electoral Commission (IEC). The law establishing the IMC went to some lengths to ensure the independence and competence of the commission through its membership. The chairperson was to be a judge or senior lawyer, while at least two other commissioners (out of a maximum of seven) were to have media experience - one in print and one in broadcasting. The commissioners were to be persons of high standing who "when viewed collectively, represent a broad cross-section of the population of the Republic". Various categories of people were disqualified from being commissioners, including state employees, office bearers in political parties, and those with a financial interest in the media.[1] But it was a solution that was only adopted and retained for the one election. In subsequent South African elections, responsibility has rested with a combination of the IEC and the independent broadcasting regulator.

The Media Experts Commission (MEC) in Bosnia-Herzegovina was also a specialized body for regulating the media in elections. As in South Africa, it was only in existence for a short transitional period. Part of its rationale was that inflammatory material in the media of the former Yugoslavia had played a significant part in inciting violence, resulting in civil war and the break-up of the federal republic. Where the MEC was unique was that it was an international body, operating under the Organization for Security and Cooperation in Europe (OSCE), rather than being part of and answerable to any Bosnian structure. The MEC was in existence for two years, from 1996 until 1998.

The Russian Federation has a specialized "information court" - the Judicial Chamber for Information Disputes. This is not strictly speaking a body that is confined to dealing with media and election issues, since it also functions outside election periods. However, it was established in 1993 specifically because of the need for a body to resolve disputes that had arisen during election campaigns.

[1] Articles 4-6, Independent Media Commission Act.

Implementation Mechanism: Judiciary

In some countries responsibility for administering elections may lie with a specialized branch of the judiciary. Uruguay, for example, has an Electoral Court that administers the vote, can rule on disputes between the parties and can investigate challenges to the election results. It may also consider complaints about election campaigning in the media, including attempts to pressure the media into biased campaign coverage.

This is a common model in Latin American countries. In Costa Rica, for example, elections are run by the Supreme Electoral Tribunal, which also has responsibility for regulating media coverage. The tribunal is an independent constitutional body composed of judges, with its finances approved by the legislature. It is entirely independent of the executive branch of government. The exercise of its authority over the media has not been without controversy. In 1999, the Supreme Electoral Tribunal instructed a privately owned television channel, Teletica Canal 7, to invite all 13 presidential candidates to appear on a scheduled debate, rather than just the top four candidates as the station had planned. The Supreme Court refused to hear the station’s appeal on the grounds that this was an electoral matter.

In most instances, whatever the precise mechanism that has responsibility for regulating the media in elections, there will be a right of appeal to a judicial body against the regulator's decisions. Such an appeal may come from the media organ itself, a political party, or an individual complainant. Like any such procedure during an election period, this is likely to be an expedited process. A well-considered judicial decision may not be much use if it is handed down after the election is over.

Complaints Procedure on Media Coverage

An essential element of most media regulatory bodies, during election periods and at other times, will be a complaints procedure. This is the means by which the public, political parties, and the media themselves can seek adjudication on alleged breaches of the law or regulations on election coverage. Since the election period is usually short, complaints mechanisms will need to be geared towards the speedy resolution of complaints. If, for example, the complaint concerns a factual inaccuracy that may influence voters' intentions, there is little use in correcting the error once the election is over.

Complainants will always have the right to take whatever legal proceedings are laid down in the country's laws - a civil suit claiming defamation, for example. And there should always be a built-in appeal process that allows disappointed complainants or the media themselves to seek a higher judgment from an independent court of law. But in general, the emphasis is likely to be on a speedy, no-cost, non-confrontational resolution of disputes. This may be particularly important in a situation in which hostility between parties or communities is great and there are likely to be many issues of dispute. For example, the complaints mechanism in Bosnia-Herzegovina, the Election Appeals Sub-Commission (EASC), was able to deal rapidly with a whole series of complaints referred to it by the Media Experts Commission (MEC) in the 1998 presidential election. This helped to reduce tensions between the different communities, by not allowing disputes between their different parties and media to escalate. This was especially important in light of the significant role played by the media in instigating political violence in the former Yugoslavia.

The variety of complaints procedures is as great as the number of different types of regulatory body. There may not even be a single uniform procedure. Britain, for example, has a statutory Broadcasting Complaints Authority to deal with the electronic media and a voluntary Press Complaints Council with responsibility for the print media. Neither of these is confined to elections in its mandate. The advantage of a specialized election complaints body is that it will be geared to the need for speedy resolution of disputes. The Nicaraguan Supreme Electoral Council, for example, receives complaints and, through its Mass Media Department, issues private rulings to the media outlets against which findings are made. It only publicizes the ruling if the media organ fails to comply.[2] In Montenegro, by contrast, publicly-funded media are obliged to publicize any findings of the competent authorities "about any infringement on the principles of equality and objectivity relating to informing citizens on agendas and candidates..."

Few complaints systems are quite as elaborate as the Russian. The Judicial Chamber for Information Disputes is not a specialized election complaints body, although it arose because of the need for a body to deal with disputes that arose during the 1993 parliamentary elections and constitutional referendum. Its predecessor was the Arbitration Court on Information Matters that had been set up specifically to deal with election disputes.[2]

[1] ARTICLE 19, Guidelines for Election Broadcasting in Transitional Democracies, 1994, p. 38.

[2] Viktor Monakhov, "Information Disputes Relating to Election Campaigning Via the Mass Media: The Experience of the Judicial Chamber in the 1999 Election Campaign, in IFES, The Media and the Presidential Elections in Russia 2000, Human Rights Publishers, Moscow, 2000.

News Blackouts

Some countries practice a blackout on all election news before or during voting. Usually, this is a voluntary arrangement. This is almost always preferable, since the alternative would be for the regulatory body to intervene to prohibit coverage if the rule were breached - a less than happy outcome. However, in those instances - most famously France - where a "reflection period" is decreed by law, then the regulatory body is likely to have some responsibility for enforcing it. In Israel, for example, which has the most extensive prohibition on campaign news, the Independent Broadcasting Authority is required to police its observance. The implementation of this prohibition illustrates the dangers inherent in such restrictions: the IBA tends to interpret the application of the law in a particularly strict manner, to avoid being held responsible for its breach.[1]

Estonian law divides its election campaign into four periods, with a blackout of election campaigning for three of them. The application (or nomination) period, the voting period, and the counting and publication of results are all periods when campaigning is forbidden. In Barbados, the law requires that there be no direct access broadcast on the eve of the election, or on election day itself.

The Media Experts Commission in Bosnia-Herzegovina was an example of a regulatory body that vigorously enforced a blackout from 24 hours before polls opened in the 1998 presidential elections until the polls closed. It did this by issuing clear statements in advance of the blackout period and then relying on the findings of its own media monitoring unit. It concluded that most of the violations of the blackout were a consequence of uncertainty in applying the rules. One television channel, for example, when it broadcast film of candidates at polling stations mentioned the names of their parties - which it was not allowed to do. In one case regarded by the MEC as more serious, a station broadcast interviews with two political leaders. The Organization for Security and Cooperation in Europe referred the case to the Election Appeals Sub-Commission (EASC), the complaints body, which struck nine candidates of the party from its election list. The MEC itself commented that most countries, in most conditions, would probably regard such an approach as draconian, unnecessary, and an interference with media freedom.[2]

[1] Akiba A. Cohen and Gadi Wolfsfeld, "Overcoming Adversity and Diversity: The Utility of Television Political Advertising in Israel", in Lynda Lee Kaid and Christina Holtz-Bacha (eds.), Political Advertising in Western Democracies, Sage Publications, London/Thousands Oaks, 1995.

[2] Media Experts Commission, Final Report: Media in Elections 1998, 1998, pp. 33-34.

Regulating Coverage of Opinion Polls

Publication of opinion poll findings is a subject that arouses strong passions. Established democracies take quite contrary positions on the issue, with France, for example, continuing to prohibit publication in the period immediately before an election, while in the United States media coverage of opinion polls is regarded as an integral part of free speech in elections. The problem is that opinion poll results - like almost any other form of expression - are not just the reflection of people's views but may also shape the views of others. That is, people may be influenced in how they vote by what they have learned from an opinion poll... or what they think they have learned.

For this reason, laws or regulations on media coverage of elections may attempt to control how (or even whether) opinion polls are reported. In Montenegro, for example, publicly-owned media are forbidden to publicize the results of opinion polls or any other projection of the election results. On election day, it is even forbidden to publicize the results of previous elections.

However, a total ban on reporting opinion poll findings, whether or not desirable, is scarcely practical. France has long had a ban on the reporting of opinion polls during elections (although not at other times). In the 1997 legislative elections some newspapers broke this regulation. They included Le Parisien and La Republique des Pyrennees. Liberation got round the ban by putting the findings of an opinion poll on its Internet site, which is linked to the Tribune de Geneve in Switzerland. France Soir followed this by publishing a poll before the second round of voting took place. [1]

This seems a fairly clear case of a law becoming ineffective once it has fallen into disrepute - despite the fact that it had been respected for many years. In the UK, where there is a voluntary practice of not reporting opinion polls on the day of elections, this restriction is widely respected.

With opinion polls, more than most other issues, much hinges on how professionally the findings are reported. The Montenegrin position of imposing a total ban on the public media's reporting opinion polls might find some favour in a situation where distorted reporting could materially affect the outcome of the elections. Generally, however, this is an issue that is best addressed by applying a light touch and encouraging the media to develop their own standards for reporting. The British Broadcasting Corporation, for example, has clear internal guidelines on reporting opinion polls that have been applied effectively for many years.

[1] Helen Darbishire, "Media and the Electoral Process" in Media and democracy, Council of Europe, Strasbourg, 1998, p. 96.

Policies on Hate Speech and Defamation

No issue is more problematic for those concerned with media freedom than "hate speech". The term is generally used to refer to advocacy of national, racial, religious, or other hatred. The issue, in essence, is how far it is proper or acceptable to limit the right to freedom of expression, when the views being expressed support the limitation or infringement of the rights of others.

One of the problems is that this may just be a matter of point of view. One person's "hate speech" will be another's legitimate opinion. There is thus a general reluctance to impose restrictions on what may be said.

This dilemma becomes even more acute in the circumstances of an election. This is for two reasons:

• An election is precisely the moment when a variety of political views should be expressed. To limit expression of some of these views potentially limits not only rights of free speech but also rights of democratic participation.
• On the other hand, the highly charged atmosphere of an election campaign may be precisely the moment when inflammatory statements are likely to have the effect of inciting people to violence - thereby infringing the democratic and free speech rights of others.

These issues are more difficult to address in a country with a history of communal or ethnic violence, where the media are known to have played a role in fanning hostilities. That is why, for example, the matter of "hate speech" was given so much attention in the Bosnian elections of 1998 - the media on all sides having played a considerable role in inciting the wars that led to the break up of Yugoslavia.

The issue of defamation is a similar problem to that of hate speech in one respect: it is an area where freedom of expression may legitimately be limited for the protection of the rights of others. Yet it does not have the same collective implications in an election campaign. Vigorous - and even sometimes insulting - debate is part of the substance of democratic campaigning. International and comparative jurisprudence has established clearly that politicians - especially government politicians - must have thick skins. They should have less protection than the ordinary citizen, not more. From the standpoint of the media in an election campaign, the clear similarity between defamation and hate speech lies in the issue of who will be held liable for any unlawful statement: the media or the person whose words they report.

International and Comparative Law

Neither international law nor the experience of various national courts offers any definitive answer on how to balance freedom of expression and protection of other rights. Precisely because it is a balance, the answer will be determined by national and local circumstances, as well as precise context.

International treaties provide a clear basis for criminalizing advocacy of hatred or discrimination. In extreme circumstances, such as the case of Radio television libre des mille collines in Rwanda, where a radio station incited genocide, journalists have been convicted before an international tribunal for crimes against humanity.

However, the general trend in interpreting this balancing act has been towards promoting many voices to counteract the effect of hate speech, rather than banning those voices that express obnoxious or unpopular views. Experience has shown that laws prohibiting hate speech are often used far more broadly than for their ostensible purpose. The country with the largest battery of laws prohibiting advocacy of racial hostility was apartheid South Africa. Invariably the victims of these laws were black.

The practice in most jurisdictions where this issue has been considered tends towards prohibiting hate speech only when it constitutes a direct incitement to violent activity. That may not itself be a very easy concept to define, but it contains the idea that no one in election campaigns will be penalized for the expression of opinions - only for interfering with the rights of others.

Media Liability

Discussion of hate speech and the media in elections is really about two separate issues:

• The media reporting advocacy of hatred by campaigning politicians;
• The media directly advocating hatred themselves.

On the former issue, the international consensus is coming down firmly on the side of absolving the media from liability for reporting the remarks of politicians, within the limited time span of an election campaign. This means that a journalist or media house would not be open to either a civil or criminal suit for reporting remarks by a politician that constituted advocacy of hatred. But this would not absolve the journalist from a professional responsibility to balance such statements with countervailing facts or voices.

Attempts to Regulate

When the media themselves directly advocate hatred - especially in circumstances that could constitute incitement - they clearly cannot expect to be absolved from liability. In these circumstances, the regulatory body would be expected to monitor the media's output closely. But this in itself creates practical and ethical problems. For example, how is it possible to distinguish between poor or irresponsible reporting of violent statements and active endorsement of those statements?

As in much else, the distinction between editorial and non-editorial content is important. Non-editorial content - primarily direct access material of various sorts - is beyond the control of the media themselves, generated as it is by the political parties. The regulatory body will have to determine how far, if at all, it chooses to vet the content of direct access items.

Right of Reply

Granting a right of reply to those who have been wronged or misreported is not a popular option among either journalists or freedom of expression advocates. Their argument is that in a free media environment these things will balance themselves over time. Unfortunately, within the confines of an election campaign, there may not be the time for this natural balancing process to take place. Hence most regulatory systems have some provision for balancing or correcting, even if only on a voluntary basis. The process of balancing conflicting views, along with an opportunity to reply or correct errors or distortions of fact, may often prove the most effective way of neutralizing the effects of hate speech without having to resort to banning it.

International and Comparative Law on Hate Speech

International standards on the issue of "hate speech" are determined by a balance of Articles 19 and 20 of the International Covenant on Civil and Political Rights. The former guarantees:

the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers...

Article 19 then outlines possible restrictions to this right, including "for respect of the rights or reputations of others".

Article 20 states:

1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

The American Convention on Human Rights requires states to declare advocacy of hatred on national, racial, or religious grounds a criminal offence. The European Convention on Human Rights and the African Charter on Human and Peoples' Rights do not require hate speech to be prohibited by law, but they allow that it may be.

The Convention on the Elimination of All Forms of Racial Discrimination (CERD) has an even broader prohibition. Article 4 requires all states who are party to the treaty to declare as a criminal offence "all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination,... the provision of any assistance to racial activities", and participation in "organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination."

In a case that related to participation in elections (but not to the media), the European Commission declared inadmissible an application from a Dutch right-wing political leader who had been imprisoned for two weeks and had his name removed from the electoral lists for advocating the repatriation of non-white guest workers.[1]However, in a case that did relate to the role of the media, the Commission admitted an application from a Danish journalist who had been convicted for broadcasting a television interview with members of a white supremacist youth gang. Danish law was changed as a consequence to exclude liability for journalists unless, by publishing racist ideas, they intended to "threaten, insult or degrade".[2]

This distinction is an important one: the attitude of the law (and the regulatory authorities) will be different depending on whether the media are actively advocating hatred or violence or they are simply reporting the advocacy of hatred or violence by politicians and others. The point is fundamental, although this does not avoid the problem of grey areas.

Decisions of International Courts

The principle that incitement to carry out crimes against humanity is itself a crime against humanity dates from decisions of the Nuremberg trials of Nazi leaders in the 1940s. Much more recently, the International Criminal Tribunal for Rwanda has found four journalists or media executives, as well as the former Minister of Information, guilty of incitement to genocide through broadcasts or newspaper articles.

Decisions of National Courts

The Israeli Supreme Court has found that freedom of expression may be infringed only when there is an imminent probability that the statement will cause damage to public order. It ruled, as a consequence, that the Broadcasting Authority had violated the rights of the leader of an extreme anti-Arab political party by reviewing his statements before broadcasting them.[3]

In Sweden, the Freedom of the Press Act prohibits the expression of threats or contempt against racial, ethnic, or religious groups. The provision is rarely used, but in 1991, a newspaper editor was prosecuted for publishing a letter from a reader expressing racist opinions. The editor's argument was that such views should be allowed to surface, in order that they could be debated. The jury acquitted the editor.[4]

The Hungarian Constitutional Court ruled unconstitutional a provision of the law on incitement to hatred. The provision made it an offence to

insult or humiliate the Hungarian nation, or a group of the population based on religion, race or similar features.

The court observed:

Freedom to express ideas and opinions, including freedom to express unpopular or unconventional ideas, is the fundamental condition for the existence of a truly vital society which is capable of self-improvement...

Freedom of expression protects statements of opinion regardless of their implicit value or truth.[5]

[1] Glimmerveen and Others v. The Netherlands, App. Nos. D 8348/78 and 8406/78, 4 EHRR 260 (1982).

[2] Jersild v. Denmark, App. No. 15890?89, Decision of 8 September 1992.

[3] Meir Kahane and Others v. Board of Directors of the Broadcasting Authority, Israeli Supreme Court, 41(3) PD 255 (1987).

[4] H-G Axberger, "Freedom of the Press in Sweden", in ARTICLE 19, Press Law and Practice, 1993.

[5] Constitutional Court, AB Hatarozat, No. 30/1992 (26 May)

Media Liability for Reports of Unlawful Statements

The UN Special Rapporteur on Freedom of Expression and Opinion has strongly stated that the media should not be held legally liable for unlawful statements that they report in the course of election campaigns. This has been a controversial issue in the past, with other international authorities, such as the UN Transitional Authority in Cambodia, taking the contrary view. The assumption that the media may not be prosecuted in a civil or criminal suit for reporting the words of politicians reinforces a trend that was laid down by, among others, the Spanish Constitutional Court. This approach stresses the right of the public to be informed about what politicians say - even if it is unlawful and potentially incites violence. It must be stressed that this is different from a situation in which the media itself deliberately incites violence.

This removal of liability has implications for both news coverage and direct access programmes. It means, for example, that the newspaper or broadcaster may not refuse to run direct access or advertising material from a party on the basis that it may expose the media organ to prosecution. The Constitutional Court in Germany, for example, decided that that was a matter for the courts to decide, not the media. But it is only reasonable to put the media in that position if they are definitely not liable. If a media organ might be prosecuted for the contents of a direct access broadcast, then they must have the right to refuse to run it. However, since that is not a satisfactory position, being clearly open to abuse, the position advocated by the UN Special Rapporteur is clearly the correct one.

Hate Speech - Operations of the Regulator

There are several possible ways in which a regulatory body may address the problem of hate speech.

Prior Approval of Direct Access Material

The regulatory body may require that all direct access material be submitted to it in advance to ensure that it conforms to certain legal or voluntary agreed standards for political speech. Whether such an approach is taken is likely to depend on whether the country has an immediate history of inflammatory speech as a serious political problem. The drawback in principle to such an approach is that it may be seen as an interference in political speech and smack of prior censorship. The difficulty in practice is that it imposes an additional administrative burden on the regulator.

Codes of Conduct

However no such possibility presents itself in relation to news coverage: international law and practice entirely rejects "prior restraint" or pre-publication censorship. The problem of inflammatory speech will therefore have to be addressed primarily at source - that is, with the political parties and candidates themselves. This would be best achieved with a code of conduct agreed between the parties in advance of the election campaign. Sometimes, as in South Africa and Cambodia, such a code will have the effect of law.

Complaints

The problem of unprofessional or biased reporting of statements by politicians will have to be addressed primarily through the complaints mechanism established by the regulatory - whether this be a media regulator or an election authority. The most effective remedy will be to allow correction of inflammatory material through a right of reply. There are useful examples of this from Bosnia and the United Kingdom.

Promoting Professional Standards

The most important measure that the regulator can take to promote balanced and unprovocative reporting of inflammatory statements is to ensure adherence to professional standards among the media. In doing this, collaboration with the journalists' own professional and trade union bodies will be vital. The regulatory body may also wish to engage in training of journalists in election reporting.

Right of Reply to Criticism or Adverse Statements

A right of reply is not popular with the media, but it has found increasing favour with tribunals and other standard-setting bodies internationally. Journalists may have to accept that this may be the least-worst option. The alternative to balancing views may be to be held responsible for endorsing the opinions of one candidate or another.

The best way of avoiding an enforced right of reply is clearly to ensure balance in coverage. Even the generally unregulated US media have been obliged to comply with a Fairness Doctrine in election reporting that ensures that all the main parties get a say in news and current affairs programmes. Broadcasting stations are obliged to offer "reasonable opportunity for the discussion of conflicting views". [1] The wording is important: "reasonable" rather than equal. Coverage is not measured with a stopwatch. It is simply that all sides of the debate get heard.

Sometimes this general approach of fairness is not adequate. The personal attack rule under the US Communication Act requires that if an attack is made on the personal qualities or character of an individual, then that person should be notified and given an opportunity to respond.[2]

In the South African election of 1994 there was a provision, slightly broader than the US personal attack rule, but based on the same principle. This is a common rule in election laws and regulations and provides a sensible opportunity to achieve balanced debate. It stated that if a criticism were levelled against a political party without that party being given the opportunity to respond at the time, or without its view being reflected, then the broadcasting licensee was obliged to give the party a reasonable opportunity to respond to the criticism.

If within 48 hours of the beginning of the vote a broadcaster intended to broadcast a programme in which a particular political party was criticized, then the broadcasting licensee should give the party the opportunity to respond within the programme, or as soon as possible afterwards. These provisions only applied to coverage under the editorial control of the broadcaster and not to party election broadcasts or political advertisements. [3]

Brazil has a right of reply provision that applies specifically to knowingly making false statements in the course of direct access broadcasts. In this case the offended party can appeal to a judge. If the application is successful the complainant wins an amount of free time for rebutting the false statement that is then subtracted from the amount of free time granted to the offender.

[1] 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.

[2] Ibid.

[3] Article 21, Independent Media Commission Act, 1994.

Journalists' Right of Access to Election Events

The media cannot cover elections properly if they are unable to gain access to relevant events and places. This is obvious enough, but unfortunately many countries that are embarking on democratic elections for the first time may have little experience of the culture of media freedom. The purpose of laws or regulations on the media in elections - and the function of the regulatory body - is to create an environment in which the media can go about their business freely. Election campaigns are not state secrets to be winkled out by dedicated investigative journalists; rather, they should be conducted in the public eye. There is thus an argument of principle that journalists should be given the fullest access to election events. For the body organizing the election, there is also a pragmatic consideration: if the media are present at all relevant events, such as briefings and news conferences, then it will be much easier for the electoral administration to convey its messages and concerns to the public.

In order to ensure access to some aspects of the election - for example, the count - it will be necessary for the electoral administration to establish some form of accreditation. In principle, however, this should not be necessary for all events, since the ultimate responsibility for determining who is or is not a journalist should lie with the relevant professional bodies, not the state.

It is important that access be non-discriminatory. It would be unacceptable, for example, if journalists from certain media organs were excluded from rallies by certain political parties. It should be an explicit element of the parties' code of conduct that they allow free access of all media to all their public events. It would be worse, however, if the electoral authorities themselves were to exercise any discrimination in determining which media were given briefing materials or invited to a press conference.

This right of access by journalists flows directly from the freedom of information principles that underlie the role of the media in a democracy. Accreditation procedures cannot be used to limit this access, either by being applied in a discriminatory manner or by being made a universal requirement for attendance at all election-related activities. Except in very limited circumstances when the security of the election process is at stake, accreditation is an administrative tool, not a principled means of determining who may or may not report on the election.

Freedom of information means, among other things, that the media are entitled to investigate and report critically on the efficiency and probity of election administration. Election administrators may not always welcome this, but essentially they have no choice on this matter. This scrutiny is not an interference with the organization of the election but facilitates and promotes efficiency. This is true as a matter of broad accountability, but it is also of practical use to election administrators in communicating their messages. If the media have good access to those organizing the elections, then they will convey their concerns rapidly to the public. This functions as an effective, no-cost method of voter education.

Accreditation of Journalists

The question of who is or is not a practising journalist is one best left to journalists' organizations - although many governments, through the Information Ministry or similar body, have a system for accrediting journalists. Whatever the merits of these different systems, however, some accreditation system is required for journalists in elections. This is because the media will be entitled to attend events - such as the voting itself or the count - that will not be open to ordinary members of the public.

The preferable system for accreditation of journalists in elections is one that is conducted jointly by the electoral supervisory body and the media regulatory body (if any) . Accreditation should be available to all representatives of local, national, and international news organizations on production of credible identification. The accrediting authority should have no discretion to refuse credentials to any bona fide news representative.

The nature of the credentials issued should be agreed upon with the police or any other body responsible for security in the elections, as well as with electoral staff. These credentials would usually consist of a laminated photocard, clearly identifying the bearer as a media representative. These arrangements should also be made known to the political parties, who would be expected to ensure that their members and supporters facilitated (and did not impede) access by anyone bearing these credentials.

When the approximate date of an election is known in advance, accreditation of most local journalists can be organized in time to avoid a last-minute rush. There should be no limit on the number of media personnel issued with accreditation. News organizations have no obligation to limit the number of journalists who are accredited, although it would be reasonable for organizers of an event to limit the numbers from a particular news organization allowed into any particular event or location if that is necessary to secure access for the widest range of media.

Although a photocard - visible evidence of accreditation - is no doubt useful at many public events connected with elections, this should only be required as a precondition for attendance in two circumstances:

• when the security of the electoral process is at stake - as at the voting or the count
• when logistics determine that only a limited number of journalists can have access.

In the latter case, it will be up to the journalists themselves to operate a pool system, whereby they will select which of their representatives attend an event and they then share the information gathered. Election officials can also set up a rotation to ensure that some journalists are always present, allowing the journalists to decide among themselves who will benefit from the various time slots made available.

In other words, accreditation is for the most part an administrative tool that only very occasionally has a security dimension. In general, the principle that anyone can have access to the public electoral process and write or broadcast about it is the paramount one.

Foreign Media

Everything that has been said about the journalists' right of access to election events and the process of accreditation applies with equal force to any foreign media who are present. It is important to stress that this is a matter of principle. The fundamental sources of the right to freedom of expression - the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights - explicitly define this right as entailing the communication and receipt of information "regardless of frontier".

In most instances, there will be foreign correspondents resident in - or at least accredited to - the country on a long-term basis. Since these journalists will invariably have some form of accreditation as a condition of their residence in the country, their further accreditation to cover the election presents little problem in principle or practice. A problem is more likely to arise if the election is a matter of some international interest (as elections do tend to be), with the attendant possibility that large numbers of foreign media staff will arrive at the last minute expecting to be able to cover it.

Precise arrangements will need to be coordinated between the body ordinarily responsible for accrediting foreign media and the organizers of the election. For immigration reasons, all foreign journalists will need to be accredited, but as with domestic media personnel, neither the government nor the electoral administrators should have any discretion to decide who may or may not come to report the election. Accreditation is an administrative measure, not a means of keeping people out.

Common sense suggests that a measure of prior planning is needed, with an assessment of how many foreign media staff are likely to want to cover the elections. Not only can accreditation be planned in advance, but also other facilities such as the necessary telephone and computer links from the media centre.

A measure of mutual patience and understanding is required. Elections are organized for the benefit of the electorate, not the international media (a fact that the latter sometimes need reminding of). International media do not directly benefit the electorate by scrutinizing the process and the politicians (although the growth of international broadcasting stations and Internet news outlets is changing this). But international accountability is part of the process of organizing free and fair elections, and, to this extent, foreign media play a similar role to that of external election observers. It is therefore in the interests of democracy and the election process itself that they are allowed and enabled to do their job.

Measures to Protect Journalists

When election campaigns turn violent, journalists are likely to be in the thick of it. Unfortunately, danger is often part of the job for reporters, but it is the responsibility of governments and those organizing elections to ensure that this is kept to a minimum.

Any physical attack or interference with a journalist is likely to be a crime under the ordinary law of the country. However, in view of the particular importance of the media in elections, some countries create specific offences related to attacks on journalists during elections. For example, Section 8 of the South African Electoral Act penalizes offences against media workers with fines of up to R200,000 (about US$30,000), imprisonment, and disqualification from further participation in the election.

The corollary to this is that laws restricting media freedom and the safe conduct of journalism should be repealed in advance of the election. Part of the safety of journalists is not being at risk of arrest for normal professional activities. This would include, for example, police or judicial powers to compel a journalist to divulge confidential sources of information.

However, just as important as what the law says is the message that is clearly communicated to all those taking part in the elections. Journalists' organizations, such as the International Federation of Journalists, usually recommend that governments (and electoral authorities) give a clear public statement at the start of the election campaign, informing all parties and the law enforcement agencies that the media are an essential part of the democratic process - and that anyone preventing them from going about their business will be dealt with using the full force of the law. Of course, the danger to journalists does not come only from over-enthusiastic party activists - often they are at risk from law enforcement officials trained in the ways of dictatorship. Hence the importance of clear public instructions - with the essential follow-up that any attacks are fully investigated and the perpetrators brought to justice.

Codes of conduct for political parties are a device sometimes used in situations where violence is likely. These too should include a clear statement on the importance of the media to the election process and the need to refrain from attacks on them.

Physical protection of journalists may be more difficult, since an intrusive police presence may interfere with the media's freedom to gather information. However, law enforcement officials should also be under instructions about the responsibility to protect journalists against attack, physically if necessary.

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.

Provisions for the Private Media

Most countries make a clear distinction between private and publicly-owned media in their regulatory systems, and in particular in the obligations that are placed upon them in election periods.

There are a number of different options, as well as a variety of different issues to be addressed.

Different System for the Private Media

One approach is for the private media to operate in elections under completely different rules. This will apply most often in the area of direct access broadcasting or political advertising. For example, when Italy first introduced private broadcasting the state broadcaster, RAI, continued with the existing system of free direct access broadcasting, while private broadcasters were allowed to carry paid advertising. These media also operated under a different regulator from the public media.

Venezuela similarly operates a system in which public media carry no paid advertising, but the private media do. Likewise, in the quite different, public-dominated Scandinavian broadcasting systems, the private media operate different rules on direct access.

Public Service Obligations in Certain Areas

Another common approach is to impose certain public service obligations on the private broadcast media as one of the terms of a broadcasting licence. This is the system that operates in the United Kingdom, for example. Thus a system of direct access programming that originated with the public service broadcaster is applied, without modification, to private broadcasters. In the UK these obligations apply to the older, terrestrial commercial channels but not to cable and satellite television.

Choice Whether to Assume Public Service Obligations

Also a popular approach is one that imposes no public service obligations on the private media. However, if the private broadcasters choose to run direct access slots, paid political advertising or voter education slots, then they must do this on the same terms as the public media

Role of the Regulator

Whichever of these options is taken, there is a role for the regulatory body in relation to any non-editorial material run by private media: that is, advertisements, direct access slots, voter education etc. The regulator will either be responsible for supervising adherence to any special rules affecting private media - if they follow the first option - or to general rules governing media (the second or third options). There does not exist the same basis for regulation of content in the private media as there is in the public. Hence the regulator will not intervene with the private media to ensure balanced news coverage. However, the private media are likely to be obliged to adhere to the same policies on hate speech and defamation, as well as being subject to a complaints procedure.

In principle a pluralism of ideas and political viewpoints is best maintained by having private media that are unfettered and able to go about their business without interference. The first responsibility of the regulatory body is to facilitate this. It is only when the private media behave in a manner that, through unfairness, obstructs the flow of information to the electorate, that the regulator will be empowered to intervene. And this will almost always apply in relation to non-editorial, rather than editorial, content.