Media play an essential role
in the conduct of democratic elections, “Not only do media outlets provide candidates a platform to voice their
political opinions, they also provide information to voters and can serve as a
watchdog for government actions.”[i] A free and fair election does
not only imply that citizens are allowed to vote in proper conditions but also
that relevant information on political parties, candidates and the election
process itself is provided so that voters are able to make informed choices. Therefore, freedom of the media is very
important in order to ensure a democratic election. (Note: The text in this section considers several sources but relies heavily
upon the vote counting discussion in International IDEA’s, International Electoral Standards: Guidelines for Reviewing the Legal
Framework of Elections.)
However, regulation of the
political use of the media is reasonable given the fact that media exposure and
elections have an increasingly close relationship. Due to the fact that the
media is considered the best mechanisms for message dissemination, it has
become a focal point, especially with regard to election campaigns. However,
while some regulation of the media is very well founded, “Any legal measures applied
to the media sector should not, however, be overly restrictive or unnecessarily
impede the activities of the media, and they should be proportional and
‘necessary in a democratic society’.”[ii]
Indeed, recent experience
shows that the ranking of political parties has become more dependent on the
use of economic rather than ideological tools, as parties use their constant
presence in the mass media as an effective strategy in order to gain social
exposure as they strive to claim voters’ preference. In this sense, it is
highly important that aspects of the activities of mass media with regard to
politics and elections are regulated. Media regulation should ensure that the
use of mass media, such as radio, television or the Internet do not become a
factor that creates inequality in elections. It is crucial that the legal
framework guarantees that all political parties and candidates have access to
the media and are treated on an equal basis by the media owned or controlled by
the State, and that no excessive restrictions are imposed on the right to free
expression of political parties and candidates during election campaigns.
Some political parties own
newspapers and even television channels, which play a vital role in the
dissemination of the party's campaign to the voters. Where there are more
private rather than government owned media the question of equal access for
parties and candidates also arises and may need to be regulated. Unlike with regard to state-controlled media,
“it seems that, according to international law, private
media is under no compunction to provide equal access to political
contestants.”[iii]
There is however, an
acceptable international standard of non-discrimination which is held to be
applicable to private media. If political advertising is allowed, the private
media must charge the same rates to all parties and candidates without
discrimination. In certain countries, paid political
advertisement is banned, while in others such a ban has been interpreted as an
unjustified breach of the freedom of expression. Nevertheless, paid political
advertising should always be identified as such and should not be disguised as
news or editorial coverage.
- Give all political parties and candidates
the necessary legal guarantees to enable them to compete on the basis of
equal treatment before the law and the state authorities;
- Prevent any
legal or administrative obstacles from hindering access to the media on a
non-discriminatory basis for all parties and individuals wishing to participate
in the electoral process.[iv]
It is important that there are
clear legal provisions for the timely implementation of these guarantees before
and during elections. The process for establishing a formula or schedule for
access and equal treatment in the media for a particular election should not
contain ambiguities and must allow its
objective application. For example, 50% of the time could be
distributed equally among all parties and 50% in proportion to the votes
obtained in the last election or to the number of seats held in the parliament.
Since political debate and some
form of political campaigning also takes place outside of election periods, a
further entitlement promoting open dialogue could be, ”to require provision to political parties of the right to
free time on public radio and television on a permanent basis, and not only during
electoral periods.”[v]
The access of political
parties and candidates to the media may be regulated in a national law covering
the media or public information, and not necessarily in the electoral law.
Media law may only contain general provisions on access and delegate the
authority for determining the details of its implementation to an
administrative body, such as a specialized media committee. There are various forms, “for such a supervisory body, including a
self-regulatory model, a traditional regulatory authority that is responsible
for overseeing the activities of the media on a permanent basis, or, sometimes,
a branch of the EMB.”[vi]
Whatever the model, the important obligation is that the body act with
independence, impartiality, transparency and consistency.[vii]
The rules on access and equal
treatment can be breached if the state-owned media are able to favor a
political party or candidate in alleged news coverage, discussion forums or
editorials. The law should prohibit partial coverage or preferential treatment
in the state-owned media and establish applicable corrective mechanisms and
penalties. Such regulation is necessary because, “in many countries the ruling party dominates the
public media. Though the emergence of independent media has had the effect of challenging
this monopoly there is still a perception that in some cases the public media
are not sufficiently accountable to the populous, often resorting to
sensational and biased reporting.”[viii]
The
rapidly changing nature of media is also having a significant impact on the
conduct and media coverage of election campaigns. Certainly, international law has struggled to
keep up with such rapid changes but among the issues to be considered are, “that impartial information regarding the election and
electoral contestants is available online; the role and regulation of blogs and
non-professional, citizen journalism during the electoral period; and the
impact of new media on the regulation of campaign finance.”[ix]
A democratic election is not
possible where the legal framework for elections inhibits or creates obstacles
for campaign speeches and free expression. Very often, the legal framework of
countries in transition to democracy censors campaign speeches by imposing
penalties against public speeches that "defame" or "insult"
another person or political rival, which may include criticism of the
government, a government official or a candidate. Such provisions can be found
not only in the electoral legislation or media law, but also in the
Constitution or in civil, criminal and administrative laws. Any legal provision
regulating defamation of reputation should be limited to civil law. Any
provision, regardless of its legal source, that imposes penalties of
disqualification, imprisonment or a fine for criticizing or "defaming"
the government, another candidate or political party, may lead to abuses.
Restrictions on freedom of expression may well violate international human rights law.[x]
In addition, such provisions may violate the guarantees to freedom of
expression enshrined in the Constitution of a country. These freedoms need to
be taken into consideration when reviewing provisions that permit censorship of
candidates, supporters or the media and are contrary both to international and
domestic standards. The only exceptions may be a specific prohibition of communications
likely to incite racial or religious hatred [xi]or
inciting violence.
Regulations and conditions that create
obstacles and penalize free speech not only deny fundamental rights and the
ability of political parties and candidates to communicate directly with voters
but also, “In an overly restrictive media environment, journalists may practice
self-censorship to avoid harassment or sanctions by the authorities, thus
limiting the information and diversity of views available to the electorate.”[xii]
The conduct
opinion polls and exit polls-especially when their results can influence the
judgment of voters who have not yet gone to the polls-is another area that
needs to be taken into consideration. In some countries it is considered that
any limitation on opinion polls or exit polls constitutes an infringement to
the freedom of expression and is therefore unacceptable. Moreover, in some
countries, the publication of such results is permitted only after the polling
has closed. Any legal provisions placing unreasonable or
disproportionate restrictions on the freedom of expression during election
campaigns should be amended or deleted from the legal framework.
The legislative framework should consider the
establishment of a specific regime for conducting opinion polls during election
periods. The purpose of regulation related to opinion polling is to prevent
political groups and parties from manipulating the electorate through opinion
polls that may eventually affect the election result. The most common measures
in this regard are the following:
- Setting out the requirements for conducting opinion
polls and publicly releasing their results. For example, the legal
framework often requires the disclosure of the name of the company that
carried out the survey, the date, the methodology that has been used, the
size of the sample and other technical characteristics such as the margin
of error and the characteristics of the sample;
- In line with the above, the legal framework grants
special powers to the election administration regarding the control of
dissemination of opinion poll results, usually including the possibility
of imposing corrective measures to the media;
- The prohibition of releasing opinion poll results
some days before the election. Although the enforcement of such ban is
difficult, given the global scope of mass media, the electoral
administration usually has the right to impose corrective measures if the
legal requirements are not met.
Another form of opinion polling is the mechanism of
"exit-polls", which was used for the first time in Israel. Unlike
opinion polls, exit-polls do not refer to voting intentions, but are based on
the replies of randomly selected voters after having voted. However, unlike
preliminary election results which are recounted and verified after the closing
of the polls, exit-polls are only based on voters’ affirmations. Hence, a
reliability problem arises. Although it may be assumed that voters in stable
democracies have no reason to hide or lie about their vote, especially taking
into account that there is no obligation to reply to an exit-poll, in practice
they often do so. Indeed, exit-polls have failed to predict election results in
many European countries. Thus it may be expected that the level of reliability
of exit-polls is even lower in countries in transition, where citizens’ fears
may have some factual basis.
Exit polls may therefore result in the disclosure of inaccurate data,
generating confusion and hindering the acceptance of the results by the
defeated, especially in countries in transition. Moreover, their compatibility
with the principle of the secret ballot may be questioned. The efficiency of
exit-polls is even questioned in consolidated democracies, where new technology
systems of rapid count allow the release of accurate and fully reliable
preliminary results in a very short period of time. To sum up, exit-polls may
hinder the electoral process in countries in political transition and, in any
case, they are expensive and unreliable.
Not only is
it important to regulate the allocation of broadcasting time in the media, but
also to regulate other issues, such as unfair media coverage of election
campaigns and the dissemination of polls and surveys in certain periods, as
these can eventually be factors that hinder equal competition.
[i] DRI and The Carter Center, Strengthening International Law, 37.
[ii] European Commission, Handbook for European Union Election Observation, 54.
[iii] DRI and The Carter Center, Strengthening International Law, 38.
[iv] International IDEA, International Electoral Standards, 61-62.
[v] OSCE, Guidelines for Reviewing a Legal
Framework for Elections, 19.
[vi] European Commission, Handbook for European Union Election
Observation, 56.
[viii] SADC and EISA, Principles for Election Management, Monitoring,
and Observation, 18.
[x] International IDEA, International Electoral Standards, 63.
[xi] European Commission, Handbook for European Union Election
Observation, 54.
[xii] OSCE, Election Observation Handbook, 64.
