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Pre-registration campaigning
Access of candidates to mass media
Equitable news coverage
Article 45
One of the most important novelties in the latest draft Federal Law is the provision that any election campaigning in the period between the date of official publication of the decision to call for the elections and the date of the candidate’s registration shall be barred as stipulated by Clause 2 of Article 45. By doing so, the lawmaker seeks to clearly define what is missing in the existing electoral legislation: no similar ban is held either by the Basic Guarantees Law or the Federal Law of the Russian Federation «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation». In relation to this, a number of critical points come to the fore.
The notion of «election campaigning prior to a candidate’s registration» comes to be legally doubtful in as much as all the law-prescribed rules and conditions for election campaigning are exclusively about the registered candidates. Activities that are conducted by individual persons or political associations prior to the registration of candidates and that containing the features of election campaigning have nothing to do with early election campaigning. That activity should be passed as either propaganda, educational, public awareness-enhancing or any other sort of pursuit that is carried out by politicians or public associations.
The issue of «pre-election campaigning» is common in most established democracies – and is also generally unregulated. Election laws, if they restrict campaigning, seek to establish clear criteria for the definition of what consists electoral campaigning, on one part, and also fix a clear timeline for it’s application. Established democracies also have stable political parties who report, on a regular and public basis, about their contributors and expenditures.6
In our opinion, the goal of having a clear «starter shot» for the election campaign is laudable in itself and consistent with the establishment of a clear level playing field. However, placing a ban on any election campaign propaganda prior to the registration date appears draconian in the absence of a definition of what consists «campaigning» and the benefits of having the media informing voters about the issues and reporting on the potential candidates for the Presidency. Clearly, while launching their election campaigns, all participants command different levels of political «capital», different financial, organizational, and other resources. Thus, it no possible to speak about equal opportunities to sway the electorate. The state merely ought to create equal conditions for the participants to run the election marathon, thereby leveling out, to a certain extent, the obviously disparate capacities held by the established frontrunners and outsiders.
The current Draft Law interprets broadly the notion of «election campaigning» as any activity performed by individual persons, electoral associations or political parties in order to urge the voters to participate in the given elections and vote «for» or «against» that or other candidate. In this connection, barring public associations, primarily, political parties, from any information or propaganda activity or politically charged promotion could be viewed as limiting unfairly the basic rights and freedoms of citizens.
In this respect, a definition of what «pre-electoral campaigning» means and the distinction between «advertising» and «coverage» is important and we respectfully suggest that such a provision be included in the law. For example, in the provisions issued by the Ukrainian CEC this is made clear by its definition of «political advertising» as «information containing «emotional appeal, creative imagery, repetitiveness, expressiveness, conciseness; with the aim of propagating ideas, views, program documents of a candidate in order to shape his/her political image, create a favorable public opinion about him/her» and so on. In the United States, political campaigning, limited to specific regulations, is generally limited to messages which directly induce a citizen to «vote for» a candidate. We will be glad to provide more examples as required on this issue.
Pursuant to Articles 47-52 of the draft law, primarily designed to regulate the television and radio campaign propaganda, special media access safeguards and special terms for running propaganda efforts in other forms are established for the registered candidates. The draft law places no direct ban on election campaign propaganda activities carried out by individual persons or public associations via the mass media. It is this gap in the 1999 State Duma election campaign that led the Central Election Commission of the Russian Federation to conclude that except for registered candidates and electoral associations no one else has «the right to pursue their election campaign propaganda efforts through the use of mass media». 7
Access of candidates to mass media
ARTICLE 47
The draft law maintains existing legal language on the right of registered candidates to have free airtime to the channels of public television and radio organizations founded (co-founded) by state agencies, organizations, establishments and/or financed through the use of funding released by the government authorities of the Russian Federation or Subjects of the Russian Federation in the amount of at least 15% of the appropriate annual budget for the year preceding the date of official publication of the decision to call (hold) the elections. The definition of the support of the state is a positive step from previous legislation as it adds clarity to the provision.
The distinction between private and public media is unique to Russia. Just a driver using a road is subject to regulations regardless of his status, so are the mass media outlets using the airwaves allocated to them by the State. In this respect, public or mass media outlet ought to be subject to the same rules and regulations. If a distinction must be made, there is one critical issue that is left open in the draft law with respect to the «public» media: the impact of the founding partners.
The Draft Law stipulates that mass media outlets that were founded by the state agencies or institutions are subject to the same obligations imposed on mass media that receive 15% of support from the State. However, oftentimes the founding procedure was purely a formal affair that did not generate any fast and solid links between the given initiator, on the one hand, and the state, on the other. For example, the Federal Law «On Joint Stock Companies» distinguishes between the notions of «founder» (the party participating in founding an organization) and «shareholder» (the party holding a stake). Furthermore, while acting as co-founders of television and radio companies along with other organizations, state agencies and institutions may have been holders of very low stakes amounting to less than 15% of the founding capital. Hence, one should primarily speak of the state’s controlling (blocking) stakes (unit shares) in mass media organizations.
By the date of the call for elections, the founder could no longer be a shareholder of the given organization: state and municipal authorities and organizations are authorized to dispose of their stakes. Then, it can never be ruled out that a television or radio organization (having no state or municipal shareholders) could be obligated to provide unpaid airtime, the grounds therefore being purely formal. This possibility should be excluded by eliminating the extension of the provision to mass media outlets founded with the State.
ARTICLE 48
Article 8(3) reads: «Equal conditions of accessing the mass media shall be guaranteed to registered candidates for election campaigning.» This principle is echoed in several other provisions: Article 48(2) reads: «The state and municipal TV and radio broadcasting organizations and editorial offices of state and municipal periodicals shall guarantee registered candidates equal terms and conditions for election campaigning, presentation of their election programs to voters.» These provisions may be problematic if there are likely to be a fairly large number of candidates. Equal time means that the fringe party candidates will get as much airtime as the candidates that have a serious chance of winning. In other countries where equal time is granted all candidates, the result often is that voters loose all interest in listening to the political spots because they have to listen to a lot from extreme candidates instead of hearing the candidates in whom they are interested.
There are at least two ways to mitigate the problem. One is to state that candidates shall receive free airtime on a fair and non-discriminatory basis. This leaves open the possibility for the election commission to grant air time based on objective factors, such as the support of the candidate’s party in the Duma, or the number of jurisdictions in which the candidate is registered (if candidates have to qualify to run in each jurisdiction). 8 A second approach is to require that the broadcast stations publish the times at which the various candidates will be speaking in their weekly broadcast schedules.
ARTICLE 49 (15)
While providing free airtime, the draft law should allow for re-ordering of candidates as required by necessity. For example, under the draft law, should a candidate refuse to campaign via television or fail to appear live on the air, there is a ban on the use of the given airtime for election campaign propaganda purposes (Clause 15 Article 49). Should candidate 2 or 3 out of the five running candidates) fail to show up and appear live on television or the radio, the election bloc would show «gaps» on air, for the draft law does not allow for reordering of the candidates. Given the television industrial specifics, a specialized agency such as VGTRK should be allowed some freedom of maneuver and be enabled to slip the airtimes of the candidates in the event of some candidates either failing or refusing to participate in a radio or television appearance.
As in the Federal Law «On the Election of Deputies of the State Duma», the draft law obligates the public television and radio companies to have one third of the unpaid airtime allocated for joint discussions, «round tables’ and other forms of collective election campaigning. Also, this time should be used by the campaigning contenders on an equitable basis. Application of this particular rule raises a number of serious questions that could put in doubt the legality of the election campaigning and compromise the safeguards for the candidates’ rights:
1. Who will determine the forms of collective campaigning (discussions, debates, «round-tables’), procedures therefor and topics to be debated;
2. The mechanism to assure equality of the candidates’ rights in the course of election is yet to be defined, including the length of a debate and when they are to be held;
3. What should be done and who (state-run television and radio companies or the CEC RF) will make a judgment, should a scheduled debate be attended by just one participant: should the affair proceed as or should such a candidate be refused the opportunity, the reason being to assure equal conditions for all contenders?
4. Also, the draft fails to respond to another critical challenge emerging from the last 1996 presidential campaign: do the agents of a candidate have the right to participate in this kind of function, given that the draft (Clauses 5 and 6 Article 49) explicitly refers to a candidate?
Internationally, debates are recognized as an important part of the electoral process – and for good measure. Depending on the jurisdiction, the ratings for debates vary from 25% to up to 65% of the electorate watching the candidates on any one evening.9 In countries that have a strong plurality of candidates, special rules are designed to allow for debates with all contenders on following various formats that acknowledge the strengths of the front-runners. For example, The Netherlands holds two debates, one with all contenders for a period of one hour and another one with only the top two main contenders addressing specific issues for a period of two hours. Debates in the Netherlands are organized by a broadcasting association. In Germany, the electoral law does not require debates; broadcasters organize debates on their own and only allow parties with a parliamentary representation to take part. In 1990, when an «elephant round» of elections occurred after the reunification of the country, no debates occurred as there were simply too many candidates. Given the impact of debates on the electoral process, it will be important to define what is required and in what format, either in the Draft Law or by the Central Election Commission.
Equitable news coverage
ARTICLE 49 (24)
Art. 49(24) states in part that «In TV and radio news programs reports concerning election campaigning events organized by candidates, registered candidates and their agents, electoral associations, electoral blocs and initiative groups of voters shall be always presented in the form of separate items, as a rule in the beginning of such programs, and without any comments. Candidates shall not pay for such news items…. They shall not give preference to any candidate, registered candidate, particularly, as regards the time devoted to highlighting their election campaigning activities.»
The issue of neutrality of the broadcasts is a murky area in which Russia is a pioneer in this respect, alongside few countries, by seeking to regulate the coverage which candidates, in particular incumbents, get during the election period through the electoral law. A broadcaster may cover events of a current office holder as if they were news, when in fact they are campaign events. News coverage of press conferences and public statements made by a candidate who is also a public official (other than conferences and statements that directly relate to his or her official duties) should be subject to equal time rules.
In most countries, fair coverage is also guaranteed through the standard regulations, which affect defamation in civil law. Current provisions are problematic in as much as they could have the effect of empowering media organs to censor statements by candidates for fear that the statements may damage «the honor, dignity or business reputation» of another candidate. It also empowers, if not virtually requires, them to pre-screen statements. The onus for preventing defamation should rest with the candidate, not the broadcaster. In lieu of this, we propose to allow for a full right of reply, as is the case in the United Kingdom. Defamation or an offense against the honor of a candidate should be limited to statements that include a materially false statement, where the speaker knows or reasonably should know that the statement is false and is likely to injure the target’s reputation. The European Court on Human Rights has made clear that speakers may not be punished for publishing opinions about public officials, even if offensive, so long as the opinions are not based on a materially false statement or fact.
A major source of bias in broadcast coverage of candidates is manipulation of news coverage. The potential for bias is particularly strong where a candidate is also a public official. A broadcaster may cover events of a current office holder as if they were news, when in fact they are campaign events; however, by covering the events as news, the requirement of equitable news coverage is not triggered. Thus, it may be advisable to include a provision that limits news coverage of office holders, except for events that are counted within the equal time requirement, or have clear and pressing news value.
In conformity with the draft law, while releasing their news programs, no television or radio company shall show any preference for that or other candidate or registered candidate, inclusive of the length of coverage of their campaign efforts. This means that a television or radio company shall either allot equal time slots to all candidates or refrain from mentioning any electoral process participant in the absence of the so-called newsworthy events relating to the activities pursued by the candidates. Given this circumstance, the phrase «inclusive of» should best be replaced by «in terms of» in the law language.
Moreover, television and radio news coverage of the election campaign drives pursued by candidates (registered candidates), their agents and electoral associations (electoral blocs) shall be formatted as an uncommented separate block early in the relevant news program. The lawmaker may wish to define options to close the following two issues:
1. A provision should be made to enable commentators to pass their editorial judgments in the course of appropriate programs on the transpiring campaign trail.
2. The lawmaker needs to clearly define the term «television and radio news program» in order to effectively handle assorted legal issues between plain news and analytical programs.
ARTICLE 49(25)
Art. 49(25) reads in part: «… These recordings [containing election propaganda] shall be kept by the given TV and radio broadcasting organization for 12 months from the day on which the corresponding programs were aired.» Twelve months may impose an unnecessarily onerous burden on broadcast media. Tapes are expensive and typically are reused. It should suffice to require that they be kept for whatever is the period of time in which complaints alleging election-related broadcast violations must be filed. Of course, once a complaint is lodged, the tapes of the target program must be preserved.
ARTICLE 50
Art. 50(13) states that non-state-run periodicals must provide space to candidates on equal terms of payment. If the periodical does not do so, then it must not provide space to any candidate. Art. 50(18) elaborates that exceptions may be made for periodicals founded by a registered candidate, or an electoral association.
Arguably, this provision is unnecessary and may violate press freedom rights of groups that favor a particular candidate. A private paper should be able to be a propaganda sheet for a candidate, so long as the ownership of the paper is disclosed.
These issue and other related questions require a speedy legal solution, for, should it fail to come, the GTRK leadership would be independently confronted with major problems in supporting the election campaigning.
ARTICLE 53(1)
Art. 53(1) reads in part: Candidates shall not call «for the violent seizure of power, violent change of the constitutional system and breaking of the integrity of the Russian Federation, warmongering propaganda. Propaganda exciting social, racial, national, religious hatred or enmity, misuse of the freedom of mass information in other forms banned by the laws of the Russian Federation shall be prohibited.» The art. 53(5) provides the penalty for a breach of this provision: «If a registered candidate breaches Clause 1 of this Article, the Central Election Commission … shall … apply to the Supreme Court … for withdrawal of the candidate’s registration.»
Particularly in light of the severity of the penalty, Art. 53(1) is excessively vague. Statements that excite hatred or enmity are prohibited by the criminal law, and the criminal law should suffice, at least where the incitement to hatred does not also incite violence. Clearly, the prohibition as written in Art 53(1) is a two-edged sword. While it aims to serve the beneficial aim of excising hate speech from the campaign, it could be misapplied by government prosecutors against candidates who make offensive statements that, however, do not go so far as to incite hatred.
The prohibition of «misuse of the freedom of mass information in other forms banned by the laws of the Russian Federation» is even broader and thus more problematic. This phrase may apply to an array of unspecified violations prohibited by the criminal law or even by civil law, such as defamation. Again, criminal penalties should suffice. Accordingly, we respectfully suggest that the last sentence of the excerpt quoted above (beginning with «propaganda») should be deleted. An additional sentence could be added, but is not needed, to address incitement to violence.
ARTICLE 53 (7)
Art. 53(7) reads in part: «Law enforcement and other bodies shall take measures to put an end to unlawful propaganda activities, prevent production of and seize counterfeit and unlawful printed, audio-visual and other propaganda materials….»
This provision must be revised to make clear that police may not seize any campaign materials, other than materials that are unlawfully posted in public places, without a warrant issued by an appropriate authority. This authority should be specified in the law (perhaps a prosecutor or magistrate). Moreover, the legality of any such seizure should be subject to expedited review, either by the Election Commission or by the Supreme Court. Furthermore, law enforcement officials should not be authorized to stop campaign speeches unless they pose an imminent likelihood of promoting violence.
6 For examples of this, see Professor Michael Pinto Duschinsky, Mass Media and Elections, IFES/Russia, 1998.
7 See Clause 9 of the Comments of the Central Election Commission of the Russian Federation (CEC RF) adopted by Ruling of the CEC RF No. 8/52-3 of August 13, 1999. Available in English at www.ifes.ru
8 For specific formulas on the allocation of free airtime, see ACE Project, at www.aceproject.org or see Professor Michael Pinto Duschinsky, Ibid.
9 See Royal Commission on Electoral Reform, Canada, 1991 – Mass Media and Debates.
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