Both media and elections are underpinned by a number of fundamental and interdependent human rights. These rights are held by: voters, candidates and media themselves.[i] They are laid out in key international and regional human rights conventions, including the United Nations Declaration of Human Rights (1948), Article 19, which protects freedom of expression at all times, and Article 21, which protects political participation and voting. These are echoed in the International Covenant on Civil and Political Rights. Implicit in these rights are also the prohibitions in human rights law against discrimination against women, the disabled, and vulnerable groups.

Looking at relations with the media from the perspective of the electoral management body, two other important principles come into play: transparency and confidentiality.

• Transparency means that the operations of the EMB are open to public scrutiny and hence accountability.
• Confidentiality means that the security of the EMB’s operations are safeguarded against those who have no right to unauthorized information and who may undermine the integrity of the election process.

Clearly these principles may come into conflict in practice. Complete transparency and confidentiality are clearly incompatible. However, establishing the precedence of these principles in any given case may be less difficult than it might at first appear. It will almost invariably be true that the plans and activities of the EMB should be open to public scrutiny. It will, without exception, be true that the vote itself should be secret. The borderline cases that fall in between are likely to be few.

The UDHR imposes obligations upon all members of the international community. But, as a declaration, it is only what is termed customary international law, in other words, it is not binding in itself, but is ‘general practice accepted as law,’ as defined by the international court of justice. With the adoption of the International Covenant on Civil and Political Rights in 1966, these same provisions were amplified and given the force of binding and enforceable law over all those states that ratified.[ii] Article 19 of the ICCPR states in part:

Everyone shall have 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, either orally, in writing or in print, in the form of art, or through any other media of his choice.[iii]

Article 25 of the ICCPR states in part:

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 [distinctions of any kind such as race, colour, sex, language, political or other opinion, national or social origin, property, birth or other status] and without unreasonable restrictions:

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.[iv]

Taken together, these two provisions have been understood to impose an obligation on governments to ensure the diversity and pluralism of the media during election periods.

There are also accepted limitations on freedom of expression, for very particular circumstances:

The great majority of activities [ie. the exchange of ideas or information as protected by freedom of expression] are completely harmless but it is clear that the notion of ‘seeking, receiving and imparting information or ideas’ also encompasses activities which few societies could tolerate, such as incitement to murder, unauthorised graffiti on public walls or the sale of pornography to children.[v]

There is a ‘three-part test’ that is applied in deciding whether a particular limitation on freedom of expression is acceptable:

First, the interference must be in accordance with a law; second, the legally sanctioned restriction must protect or promote an aim deemed legitimate in international law; and third, the restriction must be necessary for the protection or promotion of the legitimate aim.[vi]

The main regional human rights treaties - the European Convention on Human Rights, the American Convention on Human Rights, and the African Charter on Human and Peoples' Rights[vii] - contain a similar combination of guarantees to the right to freedom of expression and information and right to political participation without discrimination.

The documents adopted by the Conference on Security and Cooperation in Europe go a step further. In the Copenhagen Document of 1990, the participating states of the CSCE committed themselves to ensure:

That no legal or administrative obstacle stands in the way of unimpeded access to the media on a non-discriminatory basis for all political groupings and individuals wishing to participate in the electoral process.[viii]

The CSCE documents are not treaties and therefore do not have the same binding force. They have, however, been accepted as part of customary international law and therefore impose obligations on participating states.

The decisions of both international and national tribunals give greater detail and substance to these broad principles on media and elections. They can be summarized as follows:

• The media play a vital watchdog role in holding governments accountable and ensuring the effective functioning of a democracy.
• Governments are obliged to ensure the existence of a democracy that ensures media pluralism, especially in elections.
• Freedom of political debate is a fundamental right.
• Political parties and individuals have a right of access to government media during election campaigns.
• Government media are obliged to publish opposition views.
• There exists a right of reply, correction, or retraction in response to wrong statements in the government media.
• There may be limits on the legal liability of the media if they reproduce unlawful statements.
• Political expression may be restricted only for extraordinary reasons.
• There is enhanced protection for criticism of politicians and government.
• There is enhanced protection for political opinions.
• There is a right to an effective remedy for those whose rights have been violated.