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I. Eremin. Conditions for Election Campaigning Through Print Media
The legal content of these conditions is disclosed, first and foremost, in Article 41 of the Federal Law «On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum» and, as regards the parliamentary elections, in Article 57 of the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation».
Unlike the former version of the Federal Law «On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum» (Federal Law No. 56-FZ of December 6, 1994) the updated version (as amended and supplemented by Federal Law No. 55-FZ of March 30, 1999) devotes a separate article to election campaigning through print media.
This fact demonstrates an obvious trend that has emerged in recent years towards more thorough legal regulation of the conditions and rules of election campaigning through the mass media.
Such differentiation is quite justified because the procedures for election campaigning through electronic and print media differ rather substantially.
The experience of past election campaigns shows that there is a marked difference between the contents of and response to the propaganda conducted by means of these two types of mass media. Whereas TV and radio programs are dominated by emotions and allow the potential voter to focus on the personality of a politician, his or her charisma and ability to persuade, in print the situation is somewhat different. Here, reason prevails over feelings and the voter can assess the substance of the election program as it really is. Therefore election campaigning though print media may materially affect the objective shaping of electoral preferences.
The basic legislative framework of the Russian electoral system is enshrined in the law «On Basic Guarantees...». This establishes blanket rules of election campaigning through print media, leaving detailed regulation of the provision of newspaper space for election propaganda to special laws - the laws on the election of deputies of the State Duma, on the election of the President of the Russian Federation, on the referendum of the Russian Federation and also to the corresponding statutory acts of the Subjects of the Russian Federation.
This is an important new departure. The 1994 Law «On Basic Guarantees...», for example, did not contain any references to legislative acts regulating the activity of print media during election campaigns.
In the course of the past five years (when parliamentary elections were held twice and presidential elections once) the rules and conditions of election campaigning in print media have, in fact, been regulated by executive acts - the instructions of the Central Election Commission.
These instructions were of a relatively high quality (repeated attempts to challenge them in court have all been unsuccessful) but the social and political significance of legal regulation of election campaigning is so great that such regulation undoubtedly deserves legislative definition in the form of direct-acting norms.
Moreover, the three-stage structure that existed before (basic law; special law; executive act) greatly complicated the practical application of the law.
Regulation under the Law «On Basic Guarantees...»
As has already been mentioned above, Article 41 of the Federal Law «On Basic Guarantees...» is fairly general and refers the law enforcer to the corresponding provisions of other electoral laws.
At the same time, this article contains several fundamental provisions with regard to election campaigning through print media.
First of all, it is necessary to identify the groups of publications into which the law divides all domestic print media depending on the nature of their participation in the publication of election propaganda materials.
The first group. This group includes periodicals coming within Clause 1 Article 39 of the Federal Law «On Basic Guarantees...» under which the editorial offices of periodicals which are founded (co-founded) by state or municipal bodies, organizations, institutions and/or which, during the year preceding the day of official publication of the decision to call the elections, were financed to not less than 15 percent of their budget from the funds allocated by federal bodies, the subjects of the Russian Federation or bodies of local self-government must provide equal conditions of election campaigning for registered candidates, electoral associations and electoral blocs.
These periodicals will bear the main burden of publication of election propaganda materials. They may and are obliged to allocate space for materials presented by candidates, electoral associations, electoral blocs and referendum initiative groups, both on a paid basis and free of charge.
More importantly, only these periodicals are burdened with the obligation to print election propaganda materials free of charge.
Incidentally, this is the first time that the possibility of gratis publication of propaganda materials in print media has been established as a norm of Russian electoral legislation. The former law «On Basic Guarantees...:» imposed this obligation only on state-owned TV and radio companies.
This innovation can only be welcomed. Extending the ways in which candidates, electoral associations and electoral blocs can publish their propaganda materials free of charge offers greater opportunities for the voters to familiarize themselves with those who seek political mandates and strengthens the state guarantees of equal access to the mass media for all participants in the electoral process.
It is therefore extremely important to identify such publications in strict conformity with the legislative definition.
So, what legal conditions must be met by a periodical which is obliged to provide free space for the publication of election propaganda materials?
First of all, there is a considerable difference between the present version of Clause 1 of Article 39 and the version of this norm which was in force before the adoption of the Federal Law «On Amending and Supplementing the Federal Law 'On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum».
The difference is that now those periodicals that must provide space for election propaganda free of charge are categorized not only on the basis of who found these periodicals as mass media, but also on the basis of who found such publications as legal entities.
Therefore, the number of publications coming within Clause 1 of Article 39 (and consequently Clause 1 of Article 41) of this law may increase.
Suppose a newspaper has been founded by its journalistic staff. Apparently, this form of association of citizens has nothing to do with state or municipal bodies, organizations or institutions mentioned in the law. However, in its corporate form the editorial office of this newspaper may be a state or a municipal institution. According to the former version such a newspaper does not come within the said norm (which is, after all, illogical in view of actual state or municipal participation in the publication of the newspaper).
Now this contradiction has been removed and in order to determine whether or not a publication can print election propaganda material it is necessary to refer not only to the certificate of registration of this publication as mass media but also to documents which detail its registration as a legal entity.
The second important condition concerns source of finance. It follows from the norm of the law that even if a periodical is not founded by state or municipal bodies it must publish election propaganda materials free of charge if, in the course of a year preceding the day of the official publication of the decision to call the elections, the editorial office of this publication was financed to not less than 15 percent of its budget from the funds allocated by federal bodies, the Subjects of the Russian Federation or bodies of local self-government.
The Law does not specify the forms of such financing but, apparently, they must include all subsidies, subventions, etc. from the federal, oblast (krai, republican, okrug) or local budgets or from extrabudgetary funds.
At the same time (although the law does not expressly say so) tax concessions and other benefits granted to the print media under the Federal Law «On the State Support for the Mass Media and Book Publishing in the Russian Federation» cannot be regarded as state financing. Otherwise all newspapers and magazines published in Russia, with the exception of advertising and erotic ones, would come within Clause 1 Article 39 of the Law.
The second group. These are publications which also come within Clause 1 Article 39 of this Federal Law, i.e., those which are founded by bodies of state power and local self-government with the sole purpose of publishing official reports and materials, normative and other acts. This group includes various official periodicals, collections of laws, bulletins, newsletters, etc. Such publications are not obliged and are not allowed to publish election propaganda materials.
The third group. These are so-called specialized publications (children's, technical, scientific, and so on) which may publish propaganda materials observing the principle of equal conditions of access for all participants in the electoral process, but are not obliged to publish such materials provided they completely abstain from participation in the election campaign.
Here, two points are noteworthy.
First, the legal content of the concept «specialized mass media» used for the purposes of this law does not coincide with the legal content of this term as used in the Russian Federation Law «On the Mass Media.» In the latter law «specialized mass media» means only advertising and erotic publications. Since the list of the specialized mass media in the article under discussion remains open it may be assumed that advertising and erotic publications are also included in this category.
Second, certain doubts are raised by the condition for the refusal of publications in this group to publish propaganda materials, namely that they «completely abstain from the election campaign, the perpetration and conduct of a referendum in any form whatsoever». Such rigid limitation is unjustified: apart from propaganda materials it may be necessary to publish important decisions of election commissions, explanations of the voting procedure, etc. The words «in any form whatsoever» make it impossible to publish such materials and can hardly serve any useful purpose.
The fourth group. These are periodicals whose editorial offices or the periodicals themselves are founded by a registered candidate, electoral association, electoral bloc, referendum initiative group or by an electoral association comprised in an electoral bloc.
According to the meaning of the article the provisions established by Clause 1 do not apply to these publications, which suggests that these publications may publish propaganda materials and have the right not to do so. An important point is that these mass media are not obliged to ensure equal conditions for all participants in the electoral process. This is quite reasonable: is there any sense in founding one's own newspaper if your opponents may speak from its pages?
Rigid legal conditions are specified for the participation of such publications in election campaigning. These conditions are determined by the composition of their founders and founders of their editorial offices. It is necessary to differentiate between publications specially founded by candidates, electoral associations, etc. and publications which traditionally share their political views but are separated from them organizationally. Thus, the newspaper Pravda traditionally adheres to the positions of the Communist Party but it does not belong to the fourth group of publications because it was founded by the journalistic staff and not by the electoral association «The Communist Party of the Russian Federation.»
Neither do publications (editorial offices) belong to this category if they are financed by some candidate or electoral association but are not founded by them.
The fifth group. This group includes all other so-called «independent» publications (this is, of course, a relative term).
The legal conditions for the participation of these publications in election campaigns are set out in Clause 2 Article 39 of the Federal Law «On Basic Principles...» under which publications of this group may provide space on their pages to all participants in the electoral process on a contractual basis. The only condition, although a mandatory one, is that payment for printed materials is to be made by candidates, electoral associations and electoral blocs on equal terms.
Because Part 3 Article 37 of this law guarantees equal conditions for access to the mass media for registered candidates, electoral associations or electoral blocs it must be assumed that the other conditions, in addition to the financial ones, for the publication of propaganda materials (place on the page, size of the material, type, etc.) must also be equal.
Thus, independent publications are not obliged to participate in election campaigning but, once they have published the propaganda material of one of the candidates, they cannot refuse to do so for all other candidates.
An important new provision is contained in Clause 3 Article 41 of the new version of the Federal Law «On Basic Guarantees...»
This provision aims to ensure the financial «transparency» of the election campaign with regard to election propaganda activities.
The «linking» of publications to concrete candidates or electoral associations allows law enforcers clearly to differentiate between election propaganda materials and other publications.
Moreover, the readers are thus able to identify such materials as propaganda. It is well known that election propaganda materials are often presented in a highly veiled and indirect way and sometimes do not bear the name of the candidate or electoral association.
It is particularly important to know that such propaganda material has been published in the interests and for the account of some candidate or electoral association when it contains propaganda against other participants in the electoral process.
It has already been pointed out above that the Federal Law «On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum» establishes only the basic rules for the use of the mass media in election campaigning.
Regulation under the Law «On the Election...»
Detailed legal regulation of election campaigning through print media is the subject of the laws on the referendum, election of deputies of the State Duma, presidential elections and the corresponding laws of the Federation Subjects.
Thus the recently adopted Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation« (Articles 52, 53, 55 and 57) contains a detailed description of the rules and procedures regulating the use of periodicals for election campaigning. These rules and procedures (lot-drawing, payment for propaganda materials, etc.) are set forth clearly and in some detail and, therefore, do not require any special explanations.
At the same time, the said law introduces some changes and additional provisions in the legal regulation of election campaigning through print media as compared with the legislative basis of previous parliamentary elections.
First. The list of publications obliged to print propaganda materials free of charge is limited to periodicals which are issued at least once a week. Therefore, various magazines, anthologies, bulletins, etc. published with the participation of the state are not included on this list.
Second. The law regulates the amount of space on the pages of a publication which is available to candidates, electoral associations and electoral blocs on a paid basis. This space must not exceed by more than two times the space provided free of charge. This is quite reasonable - the elections must not turn into a competition between the rich.
Third. More rigid requirements are set for publication of propaganda materials by so-called «independent» media. Under Articles 55 and 57 of the law, these media will be barred from participating in the publication of election propaganda materials if, within twenty days after official publication of the decision to call the elections, their editorial offices do not announce the rates which they will charge for the provision of space for election propaganda and notify the Central Election Commission of these rates.
Fourth. Municipal publications (i.e. newspapers which are founded by bodies of local self-government or financed by these bodies to not less than 15 percent of their budget) must either provide equal possibilities for all candidates, electoral associations and electoral blocs for election campaigning or refuse to participate in propaganda activities at all.
Fifth. Attention must be drawn to Clause 17 Article 57 of the Federal Law «On the Election of Deputies...» which states that election propaganda materials must not be accompanied by any forms of editorial comment and by headlines and illustrations that have not been agreed upon with candidates, electoral associations and electoral blocs. From the context of this article it follows that this rule applies to all publications, including the so-called «independent» ones.
However, I believe that this does not deprive the editors of the right to publish what they think about various propaganda materials in, say, the next issue of the newspaper: the said rule speaks only about editorial comment accompanying publication of the propaganda material, i.e. the comment that coincides with the material in time and place.
Igor EREMIN
Deputy Chairman of the Judicial
Chamber
under the President
of the Russian Federation
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