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03.04.2020, . 08:48

Mass Media and Elections

Dr. Michael Pinto-Duschinsky

Introduction

Why have there been so many books and articles in Western countries on 'politics and the media'? Why does this flow of academic and popular writing on this subject show no signs of diminishing?

There are at least three reasons: first of all, the topic is extremely important for the working of democratic government. Control over mass communications provides power; the concentration of control over TV and the press - whether in the hands of an existing government or in the hands of a private individual or business - leads to a concentration of power, which may endanger free and fair elections.

Second, large numbers of books are published on 'politics and the media' because they deal with several problems (as will be shown) and not just a single problem.

Third, these problems have no simple answers.

The common questions and difficulties include the following. Those which will be considered in this paper, are in italics:

1. Government control or influence over media in general and, in particular, over politically-relevant aspects of the media (such as news broadcasts).

2. What should be the role of regulatory bodies? What are the main forms of regulation of political broadcasting?

3. Should there be different rules for electronic media (television, radio, and cable) and for printed media (newspapers, magazines and books)?

4. 'Bad taste' and extremism: should officials of broadcasting stations be allowed to refuse permission to candidates and parties to make their allotted share of free or subsidized broadcasts on the grounds that they include incitements to racial violence or breach standards of public decency in other ways?

5. Should parties and candidates have a right of reply to 'negative' statements made about them?

6. Problems of enforcement....

7. The concentration of power in the hands of 'press barons' and 'media moguls' - rich individuals and corporations; for example, Silvio Berlusconi in Italy or Rupert Murdoch in Australia, the United States and Britain.

8. Foreign ownership.

9. Allocation of free or subsidized time on television and radio stations for party political broadcasts: should the broadcasting stations be obliged to provide free or subsidized time? How should opportunities for free or subsidized political broadcasting be allocated between rival candidates and rival political parties? What are the principles on which such decisions should be based?

10. Problems of the poor quality of political broadcasts.

11. Problems posed by changing technologies of communication.

1. The Problem of Governmental Control or Influence over the Media

Elections will be 'unfair' if the governing party or the existing president (or prime minister) have too much control or influence over television, radio and the press. Parties and candidates wishing to make a challenge at the voting booths will be at a disadvantage if they are unable to tell their side of the story.

Governments may control the media in a variety of ways. Sometimes, they do so crudely, sometimes in a more subtle fashion. Some years ago, I met the president of a 'new democracy'. There had been complaints in his country that journalists working for opposition newspapers had been arrested on unreasonable charges of printing sensitive military information, that the television news was openly biased in favor of the president, that foreign news services were not permitted to operate in the country, and so forth. I raised the question of permitting a free media. The head of state answered without hesitation: «Freedom of the media! Never, as long as I remain president. What need is there for any news service apart from the official government news agency? So-called 'free' journalists only want to tell lies about me «.

Governmental control over public television channels is not restricted to the 'new democracies'. Under General de Gaulle, French television was notorious for being controlled by the government.

However, even when there seems to be a high degree of independence on the part of the television and the press, the government may be able to exert a great deal of informal influence. This may be achieved in several ways:

- Disguising political propaganda as 'public information'. For example, a government may choose a period shortly before an election to launch an information campaign to 'explain' a new health care scheme or to encourage people to claim pension rights or to document some government achievement. Typically, the government will use public funds to pay for advertisements in newspapers or on commercial television station.
- Indirect pressures on officials of television stations. If a publicly-owned television station depends on government funds, the hint of a coming budget reduction may be sufficient to give a clear message: 'if you criticize the government in news broadcasts and in other programs, you will suffer financially'.
- Manufacturing news. If a government declares war or introduces reductions in taxation or increases in benefits shortly before an election, the broadcasters will have little choice but to report this news even if they suspect the government of a deliberate attempt to manipulate public opinion.
- News management. Governments are able to reward sympathetic journalists and friendly newspaper owners by passing exclusive new information to them and by denying information to reporters who records of criticizing them.
- Legal pressures and rewards. The government may threaten to introduce legislation that will penalize particular newspaper owners. It may, for instance, introduce a law to prevent a single person or firm from owning newspapers and television stations at the same time; or it may restrict the proportion of the newspaper market, which may be owned by one proprietor. A hint of such legal action may prove sufficient to persuade a newspaper owner to make his journalists write articles more favorable to the government in the hope of avoiding unfavorable legislation or unfavorable regulatory decisions.
- Influencing 'independent' regulatory authorities. If there is a supposedly independent body to supervise the press or the media, the government of the day may have the right to nominate some of the members, thereby making it possible to ensure that some of those on the board are its supporters.

The root of the problem of 'incumbent's advantage' is that there is usually no clear and natural distinction between the actions which a president, government minister or legislator takes in the natural course of carrying out his or her official duties and the action he takes in order to be re-elected. A government which reduces taxes before an election may genuinely be acting for the good of the country; but it may also be taking a decision motivated by party interests in the forthcoming campaign. Admittedly, the president may occasionally give a speech to a meeting of party members - specifically partisan occasion; more often, supposedly non-partisan, public duties have a clear, though unstated, party-political aim.

There are three types of approach to keeping the problem of unfair governmental influence over the media under control. Admittedly, they are all imperfect. But perfect solutions do not exist.

A) Imposing Rules and Statistical Norms

It is possible for the authorities responsible for regulating television or for a committee consisting of representatives of all the main political parties to agree on a set of firm rules about the coverage of politics on news and current affairs programs.

Such rules may include the allocation of free time for party political broadcasts but much more too. Examples of rules to restrict governmental influence, especially in the period immediately before an election are:

- a ban on television coverage of opening ceremonies attended by the president of new roads, bridges, hospitals, schools and other 'election bribes',
- a right of reply by opposition political leaders to news items of urgent public interest. For instance, if the president announces a sudden military attack on another country, equal time will be given to opposition leaders to make statements (perhaps putting the view that the president has only made this attack in order to divert public attention from the domestic economic crisis, from a sex scandal, and so forth),
- a rule that a specified number of minutes will be given to reporting news about the government and about each of the opposition parties. For instance, during an general election in Britain, the television authorities have been obliged to give the same amount of time to reporting the campaign of the governing party and of the opposition party; the third party, the Liberal Democrats, have also received a set and agreed allocation of time (usually 80% of the time given to the government and the main opposition parties).

These tight rules have the advantage of being statistically measurable and mechanical. They are therefore suitable in situations where there is basic lack of trust between the parties and between the television authorities. They have serve disadvantages too.

Tight rules are resented by journalists since the rules prevent the journalists from making independent judgements about the news value of events. For instance, if a military operation is in progress, there may be strong reasons for informing the public about what is happening. It may be inappropriate to be obliged to give equal time to reporting comments by opposition politicians. On other occasions, it may be desirable to give the majority of news time to reports about the opposition. The view of the reporters is: «Please trust us. Freedom of the press and of television requires politicians to give discretionary powers to independent reporters». This is the case that has recently been made on behalf of the British Broadcasting Corporation against rules requiring the counting of minutes of coverage on the television news given to rival parties.

Furthermore, the intention of right rules about amounts of coverage on television news may be subverted. If a television producer is prejudiced against one party, he may report boring parts of speeches of politicians of that party while presenting a more interesting and appealing set of news clips about his favored party. Equal time on news programmes does not guarantee equally favorable treatment.

Counting of minutes of news time also become difficult when there exist large numbers of parties and candidates.

Because of these problems, such 'automatic' regulations, when they exist at all, are applied only for a relatively short period immediately before an election. In Britain, the rules about counting minutes of coverage on news programmes to government and opposition parties apply only for about one month.

B) Creating Independent Regulatory Authorities

In several countries (including, of course, the Russian Federation) committees have been created to act as buffers between the broadcasters and the government. The members of such bodies may fulfil roles parallel to those of judges. As happens with judges, the effectiveness of such independent regulatory bodies depends on the respect, which they command. This is turn depends on the procedures for appointing their members. If the government of the day has too strong an influence over the appointment off members of the regulatory authority and if the persons appointed lack public respect, then the decisions of the authority will be viewed with suspicion by opposition parties and politicians.

Apart from independent regulatory authorities for public and private television stations, which are normally established by law, there are also voluntary bodies set up by newspapers or by commercial advertising organizations. These bodies are forms of 'self regulation'; by showing that they are capable of regulating themselves, newspapers, political lobbying organization and commercial advertising companies aim to satisfy public discontent about alleged excesses and wrong-doings on their part. In this way, «self-regulation» may avoid the need for statutory regulation. Sometimes, these bodies draw up codes of conduct and review complaints from politicians or from members of the public. Such bodies, unlike law courts, cannot compel their members to give evidence and they cannot impose legally-binding penalties; but they posses strong informal powers.

For instance, there is in Britain a Press Complaints Commission, which is under the chairmanship of a well-known personality who has no professional links with journalism. The Press Complaints Commission issues judgements on specific complaints, which may command a fair amount of public attention. It also tries to persuade its members to agree to adhere to standards (for instance, about respecting the privacy of children belonging to the Royal Family). The effectiveness of 'self-policing' bodies is a matter of disagreement among observes.

C) Creating a Political Culture of Respect for Freedom of the Press

At first glance, this may appear to be an abstract, insubstantial 'solution'. Indeed, in the short term, it may be a Utopian idea. Nevertheless, it may also provide the most effective solutions. This is shown by examples.

- In Britain in the 1980s, television journalists became concerned (rightly or wrongly) about what they felt were unreasonable pressures being imposed by the government on the independence of the publicly-owned but independently-operated British Broadcasting Corporation. These pressures consisted of threats about future financing as well as what considered to be interference with editorial decisions about specific current affairs programmes. The broadcasters reacted with brief, largely symbolic strike action. They also subverted the intention of some regulations. When they were prevented from broadcasting the voices of leaders of the Irish Republican Army and its related political movements, they employed actors to mimic exactly the voices they were banned from recording directly. This action was intended to send a strong message to the government that it would have a heavy political price to pay (in terms of unfavorable news coverage) for their attempts to interfere with the independence of the news reporters.
- In several countries, research institutes have been created to monitor the output of political broadcasting. If, as in Mexico, activities of the government have been reported with indecent frequency on television, research reports recording the facts have helped to put create public pressure for fairer coverage.

2. How to Control «Negative» or Trivial Campaigning

In the United States in particular and in Western countries in general, the topic, of «negative campaigning» has led to considerable concern. During the run-up to the British general election of 1997, there was much comment and some criticism of an advertisement paid for by the Conservative Party (at that time the governing party). The advertisement appeared on commercial bill-boards (paid TV political advertising in Britain is prohibited). It showed the leader of the Labor Party with the eyes of a devil. Some regarded the 'demon eyes' poster as humorous; others felt it was in very bad taste.

Negative campaigning in the United States has often consisted of paid television advertisements, often in the form of a very brief time-slot. Such advertisements have characteristically consisted of a short, negative statement or statistic about an opposing candidate.

There has been much criticism of what have been called 'sound bites'- short, potentially misleading statements or film shots of no more than a few seconds. One celebrated sound bite was George Bush's statement as presidential candidate: 'Read my lips, no new taxes.' Many other sound-bites have consisted of attacks on political rivals.

However, the fact that certain campaign practices are undesirable, especially in the view of academic commentators, does not necessarily mean that they should be or can banned. Democratic campaigning is a rough business and always will be.

If useful to distinguish between three different kinds of 'negative' campaigning:

- Exaggerated or unreasonable statements of opinion ;
- Unfavorable images;
- Untruthful personal attacks.

A) Exaggerated or Unreasonable Statements of Opinion

Political leaders will always present the abilities and records of their rivals in the worst possible light. The main remedy is to ensure that all candidates and parties have opportunities to have their say. On television, ways to do this include the allocation of free time for political broadcasts by the rival parties and candidates and, in some countries, arrangements for political debates. In one such debate in the United States, Ronald Reagan appealed to the public and clearly won votes when he calmly mocked his opponent, Jimmy Carter.

In short, it is normally unnecessary to try to ban negative statements about political opponents provided that news broadcasts are impartial and providing that there are adequate opportunities for free time for party political broadcasts.

However, it will be useful to make four qualifications to this approach:

- Paid political advertisements on television. While most countries provide free time for political broadcasting, a small number -particularly the United States - omit to do this and, instead, permit paid television advertisements by parties and candidates. Though there is a 'free speech' argument for permitting such paid advertisements, there are grounds for banning them. Such advertising can be very costly; it therefore gives a strong advantage to well-financed parties and candidates; allocations of free time for political broadcasts are, arguably, more fair. Moreover, paid political advertisements are characteristically in the form of slots of only a few seconds whereas free party political broadcasts are usually longer. Since it is short, paid slots that are normally used for negative sound-bites, a ban on such slots is likely to lessen the opportunities for the least desirable forms of negative campaigning.
- The problem of negative statements by «third parties'. When one political party or candidate makes a negative statement about a rival, the democratic remedy - as outlined above - is to allow a fair interchange of argument. But matters become more complex when outside pressure groups intervene in an election campaign. Questions have arisen in both Canada, the United States and England from the participation in Election campaigns of religious organizations or of economic interest groups and lobbies. These are known by the generic name of 'third' parties (though they are not political parties at all).

Rules concerning fair allocations of time between parties and concerning legal limits on permitted campaign expenditure by parties and candidates are upset when a non-party group makes a strong attack on one particular side of an election campaign. For example, religious groups, which oppose abortion, have sometimes launched personal attacks against candidates or parties, which have favored abortion rights for women. The candidates who find themselves under attack from such non-party sources will need to find extra resources and extra opportunities to reply to these attacks.

If fairness between the main parties and candidates is the principal objective of electoral regulations, then the answer is to ban or to place strict limits on all interventions by 'outside' groups. If free speech is the man objective, such a ban on expression by religious and other groups is clearly intolerable. There is now a body of case law in several countries about the legality of bans on free expression by third parties.( See the Neill Report, vol 1, 208-12, Freedom of expression and its legal protection: a comparative review).

- Press versus television. Doctrines of fair coverage have usually applied to television and radio but not to the press. Whereas television producers have often been obliged by law to seek political fairness, newspapers have been permitted to be openly and blatantly partisan.

The reason for this distinction has been mainly technological. Whereas there have been hundreds and thousands of different newspapers in a single country, there have in the past been very few television channels. Television has a natural monopoly, frequently a publicly-owned and operated monopoly. It is for this reason that is proved necessary to introduce special safeguards for the political fairness of television and radio coverage.

New technological development - especially the development of cable television networks - may in the future lessen the distinction between the regulatory needs of the press and of the electronic media.

- Extremism and 'poor taste'. It is central to democratic ideals that free and fair access should be given to parties and candidates with a very board range of options. This makes it desirable to tolerate parties with extreme and generally unacceptable views. But are there limits to such toleration. Is it 'democratic' to allow free speech to groups preaching violence and hatred, especially against members of minority races and religions? Is it necessary to permit pornographic or otherwise offensive or shocking images to be shown?

Before the British general election of 1997, some of the television authorities in Britain refused to screen party political broadcasts prepared by two groups. One group, which was campaigning to make abortions illegal, wished to screen pictures of featuses, which were so shocking that the TV regulators considered that they were unsuitable to be shown to audiences which would include young children. They agreed to show the rest of the film, but the pictures to which they objected were blanked out and, instead, there was a notice that they had been too shocking to show.

In another case, a television channel refused to screen a broadcast by a far-right wing political party on the grounds of the extremist views being propagated. India is another country in which standards of basic manners and taste are required in political broadcasts.

Clearly, there needs to be care that this kind of censorship is exercised only in the most exceptional circumstances. The existence of a broadly based and respected regulatory authority gives the best assurance that public decency and free expressions are appropriately balanced.

B) Unfavorable Images

It is reported that, under General de Gaulle, French television station would regularly film opposition politicians from angles that made them look as ugly as possible, while de Gaulle himself, and his supporters, were presented in the best possible light. Such non-verbal bias may be very powerful on media where, in the classic phrase 'a picture is worth a thousand words'.

Once again, the best way to control such visual unfairness is to create a culture of fairness among journalists. This is a long-term task. In the shorter term, regulatory bodies may have a useful function.

C) Untruthful Personal Attacks and the Right to Reply

Campaigns sometimes go beyond the normal rough and tumble tactics of insults and exaggerations. When damaging and deliberate personal falsehoods are spread, aggrieved candidates need to be able to obtain redress and, as a campaign comes to a close, they need to obtain this redress rapidly.

As an example of campaign 'dirty tricks', a team working in 1972 on behalf of the United States president and Republican Party candidate, Richard Nixon, arranged a set of 'dirty' attacks on one of his Democratic Party rivals, Edmund Muskie. They arranged for a pro-Nixon newspaper in New Hampshire to carry a report that Muskie has used a racially-derogatory word to refer to citizens of French-Canadian-origin a report clearly aimed to make these voters oppose Muskie. This falsehood proved an effective political weapon and succeeded in destroying his campaign.

In order to limit the damage from such tactics, the 'right of reply' has been adopted in a number of countries. It should be noted that such a right of reply is more appropriate for falsehoods concerning matters of fact than for expressions of opinion; also it is especially appropriate for personal attacks against a political rival.

European law. On the European Continent, the legal system often provide individuals and organizations with rights of reply to factual allegations in the press or on TV or radio.(See Barendt, Broadcasting Law. 157 ff.) Such rights provide a remedy for defamatory attacks which is speedier than actions for libel in the courts. European reply rights have been well established in the case of the press and it would have been odd not to enforce them against the broadcasting media too. Barendt (professor of media law at University College, London) writes:

«In Germany they are regarded as protecting the constitutional rights of dirty and free development of personality. The contribution their exercise may make to the goal of public discussion is of secondary importance. Statutory provisions in France, Germany, and Italy... clearly confirm legal rights. Indeed, in Italy the Constitutional Court's landmark ruling of 1974 required Parliament to formulate a right... [T]he entitlement is for the benefit of individuals as well as associations.»[See P.Lax. I1 diritto di rettifica nell' editoria e nella radiotelevisione. Padua, 1989,70-9.]

In Germany, the right of reply to a factual allegation must be asserted without delay and at latest within two month of the broadcasts. The reply must be broadcast without delay a time of day similar to that when the offending broadcasts was transmitted.

In Italy the right can only be successfully claimed against broadcasters when the allegation is in fact untrue. In France, and generally in Germany, it is enough for the complainant merely to allege that the broadcast was inaccurate. If the broadcasting authority fails to transmit a reply, the right can be imposed through the civil courts.

However, there are differences of detail between the laws in France, Germany, Italy and some other European countries. Therefore, the European Commission proposed a measure of harmonization for member states of the European Union. The European Commission Broadcasting Directive requires all member states to provide a right of reply or equivalent remedies to any persons whose interests have been damaged 'by an assertion of incorrect facts'. This formulation appears to follow the narrower rights of Italian law.

British law does not provide a right of reply but complaints of unfair treatment and invasion of privacy may be made to the Broadcasting Complaint commission (BCC). The BCC may direct the broadcasting body to publish its findings 'a sanction which bears some resemblance of the compelled publication of a reply' (Barendt, 158). The BCC was first set up on a statutory basis in 1981 and is now regulated by the Broadcasting Act 1990. It must have at least three members who are appointed by the government minister responsible for broadcasting. In practice, it has five members and it is a quasi-judicial tribunal. The statute sets out detailed rules about the manner and time-limits for making complaints and the procedure for their consideration.

Apart from having the power to order broadcasters to publish a summary of the complaint and of its findings, it publishes annual reports with full summaries of its adjudications. These apply to private as well as public broadcasting stations. The private stations are obliged to obey the adjudications as a condition of their operating licenses. Britain regards these procedures as meeting the requirements of the European Commission Broadcasting Directive.

In the United States, rights of reply were, from 1946-87, governing by what was called the Fairness Doctrine of the Federal Communications Commission (FCC). The Fairness Doctrine was the subject of a considerable amount of case law. Relevant decisions of the United States Supreme Court are also summarized by Barendt.(p. 158ff.)

It should be noted that legally enforceable rights of reply have normally been enacted for purposes much wider than those of elections. As far as elections are concerned, the special problem is that aggrieved candidates and parties need to exercise their rights very rapidly if they are to be effective in countering malicious or false allegations. Action in the courts, though useful as threat, will normally take too long to provide remedies before the election is held. Thus, it is important for aggrieved candidates to be able to appeal first to a body responsible for regulating broadcasting or the press.

3. Penalties for Violation of Laws and Regulations Relating to Mass Media

Statutory penalties range 'from administrative warnings at one end of the scale to the ultimate sanction of license withdrawal at the other'. (Barendt, p. 155). However, the withdrawal of the license to operate a television station is like a nuclear weapon. It is such a serve penalty that, in real life, it will not be used. On the other hand, 'warnings' will be too small a penalty to discourage violations, especially when the political stakes of a presidential election campaign are so great.

Examples of gradations of penalties for private broadcasting channels are as follows:

Britain. The Independent Television Communication (ITC) is the regulatory body responsible for the different commercially operated television channels. It may apply a range of sanction for breaches of license conditions. These conditions require those holding licenses to conform to the standards set out in broadcasting legislation and the ITC Code.

The sanctions range from the power to direct a television company to broadcasts an apology or correction, to the power to revoke a license. The penalty can be imposed only after the company has been given a chance to state its defense of its actions.

- The ITC may direct a broadcasting company not to repeat broadcasts, which breaches the rules. This is the only censorship power the ITC possesses.
- For a first offence, the ITC may impose a financial penalty of up to 3% of the broadcasting company's revenue.
- For a second offence, the fine may be up to 5% of revenue.
- The license period be shortened for up to two years.

France. Barendt reports that the French law of 1989 appreciably strengthens enforcement powers over private broadcasters. It gives the regulatory authority power to suspend a license or a particular programme for a month, to reduce the license period for up to a year, to impose a fine (coupled eventually with a suspension), of to withdraw a license altogether (p. 118). As in Britain, the maximum financial penalty is 3% of income assessed over a year for a first offence, and up to 5% for a subsequent offence.

Italy. The broadcasts law of 1990 confers significant penal powers on the Garante (the Guarantor of Broadcasting and Publishing), one of whose responsibilities is to ensure that broadcasting standards are observed. If a broadcasting company fails to comply with an instruction to provide a right of reply or with some other remedy, the Garante may impose a fine of up to 100 million lire (US $60,000) or in serious cases suspend transmission for up to ten days. ' If there are repeated violations within the following year, transmission for a period from eleven to thirty days may be suspended, or in more serious cases withdrawal of the concession [license] may be recommended. But only the minister of Posts and Telecommunications may take this ultimate step', (p. 118).

Apart from official regulatory bodies, individual viewers or associations representing viewers may have remedies for alleged violations by broadcasters. For example, in Britain various law courts (the Court of Appeal and the Court of Session) have granted individuals the standing to compel the broadcasting regulator to exercise its statutory powers to control allegedly 'indecent' items. In the United States, the District of Columbia (Washington, D.C.). Circuit Court of Appeals has recognized the standing of a listener's group to challenge a decision of the FCC (the official regulatory body) which had denied it the right to participate in license renewal proceedings. This support by the courts for citizen participation rights compelled the regulatory body - the FCC - to take more seriously its powers of control over programme standards.

Comments On Recent Legislative Proposals1

Article 36, Section 4

A registered candidate holding a Class A office shall be entitled to conduct election propaganda only at leisure time (leaves, weekends, holidays, other hours and days-off).

Comment

This section intends to deal with the problem of the advantages of incumbent office-holders. This problem is the subject of Part 2 of this paper. The problem is certainly basic and affects many elections in many countries. In my opinion, the solution to the problem set out in this section will not work.

First, it is unclear whether high office-holders have legal contracts which set out their hours of work and their hours and days of leisure. Does the president of a country have specified office hours? In the absence of such clearly specified office hours it will be difficult for the law courts to decide whether or an activity has been carried out during a 'leisure time'.

Second, and more important, there is often no clear distinction between an office-holder's 'election propaganda' and announcements made in the course of carrying out normal governmental duties. This is discussed in Part 2. If the president arranges to open an unusually large number of hospitals and schools and to announce increases in pension payments in the period immediately before the election, are television reports of these announcements and public appearances 'election propaganda' or are they examples of the carrying out of public duties?

Alternative, possibly more practical approaches to dealing with the tricky problem of 'incumbents advantage' are set out in Part 2 and in the commentary to Article 39, Section 1.

Article 39, Section 1

TV and radio companies as well as periodicals which are founded (co-founded) by 'state or municipal bodies... during the year preceding the date of official publication of a decision to call the elections, shall provide equal opportunities for election propaganda to registered candidates, electoral associations, electoral blocs.'

Comment

1. The term 'equal opportunities' is ambiguous and may cause problems. Since there are likely to be a large number of candidates, electoral associations and blocs, it will impose great burdens on the news broadcasters if they are not allowed to mention one of the without, at the same time, mentioning all of the others.

Moreover, does 'equal opportunities' mean that the smallest electoral associations and blocs must receive time equal to the largest ones? If so, this practice will undermine the principal associations and blocs which are challenging the government. The members of the government are bound to receive considerable coverage. If the time for all other candidates, associations and blocs are divided into salami-sized portions, it will be hard for any of them to make an impact. (This is discussed more fully in my previous paper written for IFES Moscow in December 1997).

2. If 'equal opportunities' is to be measured in number of minutes of coverage (see Part 2 above), then the time period for which such formalized 'equal' coverage is required by this section one whole year is unusually long by international standards. A period of about one month is more usual. It should be noted, however, that it is normal international practice for broadcasting laws to set out less formal political standards of neutrality and impartiality on a permanent basis and not just for the period immediately before an election.

Article 39, Section 2

The TV and radio companies and periodicals which do not come under provisions of Clause 1 of this Article may provide air time, space in printed media to registered candidates, electoral associations, electoral blocs, referendum initiative groups on a contractual basis. Registered candidates shall pay for air time and printing space and air time on the channels of TV and radio companies shall be provided on equal terms and conditions and the payment shall be exclusively through the appropriate electoral funds.

Comment

In order to assure proper accounting for money paid for political advertisements on television, it is possible to impose an additional requirement on television companies to submit returns to the election commission which set out: a) the date, time and duration of each political advertisement, the details of the candidate, association or bloc making the advertisement; b) the amount of money paid for the advertisement and the advertising rate( that is, cost per second). Such a requirement exists in Australia.

Article 40, Section 6

In the news casts TV and radio companies shall not give preference to any candidate, registered candidate, electoral association, electoral bloc, in particular when highlighting their propaganda activities.

Comment

1. In the same comments apply here as for Article 39, sec.l.

Article 45, Section 2 And 6

2. In conducting election campaigning, misuse of freedom of the mass media, propaganda of social, racial, national religious hatred and enmity, appeal to seize power, to violent change of the constitutional system and disintegration of the state as well as propaganda of war and other forms of misuse of the freedom of the mass media not allowed by federal law shall be prohibited.

6. If a registered candidate, electoral association, electoral bloc breach Clause 2 of this Article the election commission shall be obliged to and other bodies, organizations and citizens indicated in Clause 4 of Article 63 of this Federal Law may apply to a court for the withdrawal of the registration of the given candidate (list of candidates)... [For breaches of rules in Articles 37-45]... an election commission, referendum commission shall, on the basis of its resolution, issue a warning... and in addition to this the election commission may cancel the resolution to register the candidate (list of candidates).

Comment

There is possible problem with the penalties set out for violations. As discussed in Part 4, there is important to provide, if possible, for a gradation of penalties and not merely for the 'nuclear' penalty of banning a list of candidates from presenting themselves to the electors.

Further Reading:

Eric Barendt, editor, Media Law. Aldershort: Dartmouth, 1994

Eric Barendt, Broadcasting Law: A Comparative Study. Oxford: Clarndon, Press, 1995

Sandra Coliver and Patric Merloe, Guidelines for Election Broadcasting in Transitional Democracies. London: Article 19, The International Centre against Censorship, 1997 edition.

Michel Pinto-Duschinsky, « Aspects of political financing: paper prepared for the Central Election Commission of the Russian Federation and for the IFES». Washington, D.C: IFES, 31 December 1997.

Michel Pinto-Duschinsky, « Parties and Candidates». In ACE Electronic Handbook. www.aceproject.org. United Nations Department of Development Support and Management Services, IFES and International IDEA. New York, Washington, D.C. and Stockholm, 1998


1 In each case, the draft amendments consist of the unofficial translation provided by IFES Moscow.







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