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.
