Media access and Regulation –Legislation Guidelines

    Arrangements for fair media access by candidates and parties are an important focus of electoral law. This is especially evident where the major information media are government-controlled. Media regulations should provide for safeguards against political censorship, unfair government advantage and unequal access during the campaign period.

    Fair media access implies not only equality of time and space allotted, but also attention to the hour of broadcasting (i.e. prime-time versus late broadcasting) and the placement of printed advertisements (i.e. front page versus back page). Fair media use implies responsibility on the part of all persons or parties delivering messages or imparting information via the mass media (i.e. truthfulness, professionalism and abstaining from false promises or the building of false expectations).

     A valuable mechanism for assuring fair and responsible broadcasting during election periods is an independent body charged with monitoring political broadcasts, broadcast civic education programs and allocation of time to various political parties, as well as receiving and acting upon complaints regarding media access, fairness and responsibility. This function might be discharged by representative transitional bodies, by the electoral administration, or by a separately constituted media commission.

    Securing responsible electoral broadcasting and publication in the media can, in part, be served by agreement on a code of conduct for the media. Such codes may be preferable as a method of media regulation (i.e. self-regulation) to legislative or governmental action, which might raise the issue of impermissible censorship and interference with the human rights of freedom of information and expression.

Promoting Professional Coverage

The responsibility for promoting professional coverage of elections in the media lies primarily with media organizations themselves. The role of the electoral administration is mainly to create an environment in which this can happen.

However, there are a number of aspects of editorial coverage where there may be specific regulations covering what the media may or may not say and consequently the direct involvement of the regulatory body. These areas include:

Coverage of Opinion Polls

Many countries have explicit regulations governing how opinion polls may be reported- indeed in some cases, notably France, reporting of opinion poll findings is prohibited altogether. However, as France is discovering, total prohibition of opinion poll reporting is no longer a practical proposition. The argument in favor of some form of regulation is that, especially in a new democracy, the public may not be aware of the limitations of opinion polling and be unduly influenced by their findings. On the other hand, developing professional coverage in this area is probably best achieved by disseminating guidelines on how to report opinion polls (…) rather than by prohibiting their misreporting.

Special Information Programming

The one area of coverage where some form of regulation is usually considered necessary is "special programming" - usually consisting of candidate debates and panel interviews. Some countries with a long history in this area have developed standard formats for this sort of program without any external regulation. Others, especially newer democracies, have developed detailed rules to ensure that all participants in the debate have fair access.

Government Activities and Campaigning

One way in which election coverage is commonly abused is by manipulation of government functions for campaign purposes. Hence, senior officials standing for reelection contrive to place themselves in the public eye through their official functions.

This happens in democracies the world over and is, to a large extent, a matter that should be left to the good professional judgment of the media themselves. However, especially where the public media are accustomed to slavish reporting of government Ministers' every function, it may be necessary to establish guidelines to prevent abuse.

News Blackouts/"Reflection Period"

Many countries operate a statutory or voluntary blackout on election news at some point. Most often this take place once voting has started, to avoid misleading and abusive last-minute campaigning. But sometimes the blackout can extend for some days before the election to create a "reflection period" when voters can digest all the information they have received during the campaign.

Special Information Programming

The most common form of "special information programming" during election campaigns is the candidate debate. A variant of this is the panel interview.

These special formats are unusual in that they fall somewhere between regular editorial programming and direct access slots. Indeed, in some countries the only form of direct access available comes as an interview or debate.

This unusual and hybrid nature of "special programming" means that in most places where they are conducted a special set of rules has emerged. Sometimes these rules are established by law, sometimes by self-regulation and sometimes by custom and practice. (...)

The most famous examples of this type of programming have been the presidential debates in the United States, dating from 1960 when a perceived debate victory by John F. Kennedy has always been credited with securing a narrow election win over Richard Nixon shortly afterwards. (One of the peculiarities of these events is that the participants are always anxious to claim victory in the debates, while pundits score them, rather like judges in a boxing contest. To the lay audience it is not always so clear who has won.) Received wisdom now has it that Nixon, with his five o'clock shadow, looked shifty and untrustworthy - a judgment that at least has the support of subsequent history. But those who listened to the debate on the radio thought that Nixon had won - it was his appearance that was decisive. This was caused at least in part by the fact that he was in pain from a knee injury. In the United States the rules governing these debates have evolved by convention.

However, the broadcasters must still abide by the equal opportunities rule made under the Federal Communication Act. This stipulates (among other things) that a broadcaster may choose which candidates are invited to take part in a debate, but that those candidates who are chosen must then be afforded equal opportunities.

Effectively this allows broadcasters to exclude minor candidates from debates, which are usually confined to the two main Democrat and Republican presidential candidates. This has led, in 2000, to two other candidates announcing plans to take legal action after they were excluded from televised debates.

Not everyone agrees that candidate debates are a good thing. The main arguments against them are these:

Debates can create artificial discord - perhaps a significant consideration where countries have recently emerged from violent strife.

Political discourse becomes too personalized - head-to-head debates underline the "horse-race" nature of political campaigning, all style and no substance.

Candidates will not agree on the need for a debate - challengers are always more likely to favor them than incumbents.

None of these arguments is overwhelming. It is not acceptable to refrain from vigorous discussion just because this spilt into violence in the past. And 20-second advertising slots do more to degrade the quality of political discourse than a lengthy live debate.

Nevertheless, many countries manage happily without them. The debate is particularly suited to presidential campaigning. Broader campaigns in legislative elections do not lend themselves to that type of format, although there will often be other forms of special programming in which leading candidates will be questioned about their policies.

Candidates are often interviewed, sometimes in a special formalized setting.

Sometimes, as in the 2000 elections in Zimbabwe, special interviews are almost the only opportunity that parties have to speak directly to the electorate about their policies. In these circumstances it is advisable o have an agreed forma, although this would not normally be set down in laws or regulations. The aim would be to have a balance of political allegiances among the journalists conducting the interview, as well as a balance of issues that did not reflect the agenda of one or other party.

Often broadcasters will have phone-in discussions in which the electorate can address questions directly to politicians. Such programs can suffer the deficiencies of all phone-ins - rambling, self-important and ill-informed callers. But they can also offer sensationally effective examination of politicians' policies. No British Prime Minister, for example, has dared to submit him or herself to such questioning since 1983, when Margaret Thatcher was interrogated with great forensic skill on the British sinking of an Argentinean warship in the South Atlantic. The caller, a Mrs Gould from Bristol, not only infuriated the Prime Minister by exposing the inconsistencies in her explanation. She also shamed the professional journalists whose job was to hold government accountable.

Allocation of Time to Candidates and Parties

Almost invariably the public media are thought to have a duty to publish or broadcast election statements by competing parties. It is generally accepted that the publicly funded media have some obligation to allow parties and candidates to communicate directly with the electorate. Beyond that, however, there are many issues to be determined.

Paid Advertising, Free Access, or a Mixture of the Two?

It will have to be determined whether direct access by political parties will be free or paid or, as is often the case, a mixture of the two. Different rules are often adopted for print and broadcast media. Sometimes all parties are allocated free direct access but can top this up with paid advertising. (…)

How Is the Time or Space Divided?

In a system of paid advertising this may not be an issue - time is simply allocated to those who can pay. (Many would argue that this is why paid advertising is an unfair option.) But if direct access broadcasts are to be allocated by a regulatory body, how will this be done? What criteria have to be taken into account to divide up the available time? Is it to be done on the basis of equality - so that every party gets the same time - or equitability (fairness), whereby parties are allocated time according to the degree of popular support they enjoy. If the latter, then how is that determined? Should time be allocated on the basis of past electoral support (the number of seats currently held in parliament), opinion polls, the number of candidates standing - or some other criterion or a mixture of all of them? Different countries have adopted widely varying systems.

Timing of Slots

Will there be regulation about the times that slots are broadcast? If everyone is to get a chance to broadcast in peak time, how can slots be allocated? What order will the parties be allowed to broadcast in? (…)

Who Pays - and Who Makes the Program?

Will the party be responsible for making its own broadcast or will facilities be made available by the public broadcaster? And who foots the bill? (…)

Who Decides What is Broadcast?

Does the regulatory body have any say in the content of direct access broadcasts or political advertising? Can the parties say what they like? What are the limits? (…)

Paid Political Advertising

Whether or not a country allows paid political advertising in broadcasting is likely to depend heavily on the traditions in its style and ownership of broadcasting and consequently the type of regulatory system that has evolved. Some may regard it as curious that the issue of paid advertising for political parties or candidates in newspapers is scarcely controversial. The practice worldwide is almost universally the same: advertising is permitted, subject only to other limitations such as campaign spending ceilings and sometimes restrictions on content.

However, the fact that many countries have followed a different course with regard to political advertising on radio and television can be put down to two factors:

First, the cost of advertising on radio or, especially, television is usually much greater than in the print media.

Second, broadcasters are either publicly owned or receive their share of the frequency spectrum from a public body.

Of course, neither of these factors in itself automatically leads to a prohibition on political advertising over the airwaves. But they do perhaps explain why the approach has been different.

Broadly speaking, countries with a long tradition of public ownership of broadcasting, such as France, Britain and Denmark, have tended to be hostile to paid political advertising. Those with a stronger commercial broadcasting tradition - the United

States represents the extreme - have tended to regard political advertising as natural

(…). It is notable that the European country where commercial broadcasting is most dominant - Finland - should also be the one where unrestricted political advertising is permitted.

This is the rough tendency, but there are many exceptions. Canada, for example, which has a public broadcasting tradition similar to the British, has an approach to political advertising much closer to its southern neighbor. Nor is the issue necessarily to do with whether a public broadcaster accepts commercial advertising. The British Broadcasting Corporation has always maintained a strict prohibition on commercial  advertising, but French public broadcasting has permitted it since the 1960s. Each maintains an equally strict embargo on political advertising.

A common pattern, of course, is for the public broadcaster to give free direct access slots according to predetermined criteria, while private broadcasters sell advertising slots to parties and candidates, often according to different criteria. This is the case, for example, in Germany, and was too in Italy immediately after the legalization of private commercial broadcasting.

Government Activities and Campaigning

Incumbent candidates for elective office will usually try to use their official position to their own advantage. A president up for re-election will schedule an important international summit to underline his importance as an international statesman. This is an inevitably, if slightly unsavory, aspect of democratic campaigning.

However, there is a line to be drawn. If a government minister were to use his official telephone or car for campaign activities that would be denounced (and perhaps prosecuted) as an abuse of public funds. Sometimes the media, wittingly or unwittingly, may abet a minister or other official in using official functions as a means of campaigning. Often the corrective action should be directed against the official rather than the media. Journalists rather need to be educated into making judgements about what is the real news value of Minister X opening a new pig farm - or whatever. In the case of the state media - funded out of public money - a firmer hand may be needed. This is perfectly appropriate. It is not censorship or an interference in editorial freedom, but ensuring the proper use of public funds.

Montenegro, for example, has laid down specific rules for coverage of official functions during an election campaign:

Contact programs or special programs featuring state officials or using their engagements for the purpose of election campaign shall not be produced prior to the termination of the election.

The reporting on the activities of state officials performing their regular official engagements shall not be used for a party's election campaign. (…)

In the Malawi elections of 1999, the High Court made an important judgement relating to broadcast coverage of presidential functions. It found that this was a perfectly normal and proper role of the public broadcaster, but that if campaign messages were included in such broadcasts then the broadcaster was duty bound to give equivalent opportunity to the opposition to convey its views on the air. (…)

Such regulations may also apply to direct access material. France, for example usually applies rules that prohibit presidential candidates from showing their "usual place of work" in their election broadcasts. This is intended to stop the incumbent president from showing himself at the Elysee Palace or meeting visiting dignitaries.

It might be felt that such prescriptions go a little too far. But few, whether in the media or in election administration, would want to go in the direction of Venezuela. There is specific provision for election advertising by the incumbent government . This is not allowed specifically to call for a vote for one party, but in practice these are scheduled alongside the advertising slots for the ruling party.

Election Day Reporting

Once the polls have opened, the role of the media changes from what it was during the campaign period - and specific rules may be devised to govern this shift. In practice, the shift may have taken place earlier (…), with an embargo placed on political campaign reporting, opinion poll reporting, direct access broadcasts or advertisements - or all of these.

The issues posed by a ban on reporting during the poll become proportionally more complex depending on how long the voting takes, as well as how large the country is.

In the later case, if the electorate is voting across several time zones, this poses especially complex issues since results in one zone may become available before voting has finished in another.

In essence there are two issues at stake:

Preserving the integrity of the electoral process and the security of the vote

Ensuring that the untimely release of information does not influence the vote in any way The first of these is more straightforward than the second. It is usually not difficult to strike a balance between allowing the media some sort of special access to report on the voting process, but ensuring that voters' secrecy and security is not breached. (…)

However, ensuring the maximum transparency and flow of information without improperly interfering with the process is more difficult, and a greater variety of approaches have been adopted. (…)

Promoting Professional Coverage of Results

Reporting results sounds in principle like the least complicated part of the whole election reporting process. Yet it is remarkable how often it is very poorly carried out.

In the Zimbabwe referendum of 2000, not a single newspaper or broadcasting station succeeded in reporting the correct results as issued by the Registrar General's Office! A major part of the problem lies with the media themselves - if they cannot correctly copy a column of figures, there is little that the election administrator can do about it.

But there is much that can be done to promote accurate and professional results reporting. Provision of a Media Centre will enormously facilitate media access to results. The mechanisms of counting will vary enormously between centralized and decentralized systems. For the purposes of media reporting, the significant point is whether results are released centrally or locally. If the latter, then media reporting is also likely to be decentralized.

When the latter system of local counts prevails, as in the United Kingdom, a massive media bandwagon has developed for projecting final results out of available results.

Provided that no results or projections are released before the end of voting, this is essentially harmless fun (although dressed up in great statistical seriousness). The worst that can be said about it is that it encourages the treatment of an election as a horse race rather than a democratic choice.

What is particularly important, however, when results emerge gradually – especially true of a first-past-the-post constituency system - is that all results are reported promptly and accurately. This is a means of public scrutiny of the counting process and lessens the possibility of manipulation of the count. It is therefore a potentially important media function.

A rather different aspect of results reporting is media coverage of projected results in the form of Exit Polls and Quick Counts.

Post-Election Reporting

Media interest in an election does not stop with the announcement of the result. For them it is a continuing story, leading on to the inauguration of those who are newly elected, the selection of a new government and so on.

For the election authority, however, any formal regulation of the media ends with the announcement of the result. There is one area, however, where a formal media involvement may continue. If there are challenges to the results, this will be a legitimate story that media will no doubt cover. It should do this in accordance with the usual professional standards governing reporting of court proceedings.

An important twist, however, will be if the behaviour of the media itself forms a dimension of a challenge to results. This has been the case in some recent elections, such as Kenya in 1997. Findings of media monitoring projects may be used as evidence and the regulatory methods of the supervisory body may come under scrutiny.