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.