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Section One. Regulating political broadcasting on television and radio, with special reference to privately owned media
In most countries, television and, to a lesser extent, radio have become the most powerful channels of communication for entertainment, for news broadcasts and for political information. This causes problems both for stated-owned and private media.
Ownership of the media by the state need not always lead to control of broadcasts by the government of the day - but it often does. A common complaint in a number of countries is that the government uses its influence over publicly owned television channels to ensure that the news broadcasts give an unreasonably favourable slant to the actions of the party in power and of its leaders. The bias is especially pronounced in the weeks before an election.
Where a popular television station is privately owned, there may be equally serious problems, especially if there is a single owner or a small number of owners and if the owner has political ambitions for himself. A prime example is Italy, where the media mogul, Silvio Berlusconi, entered politics. Obviously, there is a strong temptation for a powerful private owner to use television channels which he owns to forward his own viewpoints and interests and not to use those channels to present information in a neutral fashion.
It is convenient to consider the problems of political broadcasting under the following headings:
1. Publicly owned media versus privately owned media.
2. Political broadcasting during the period that immediately precedes an election versus political broadcasting during `electoral peacetime'.
3. Regulations relating to advertisements by candidates, parties and electoral associations; regulations relating to the neutrality of news broadcasts or current affairs programmes; and regulations relating to entertainment programmes and other `non-political' broadcasts.
4. Legal versus non-legal controls.
1. Publicly owned versus privately owned media
During the conference at the Aerostar Hotel and in subsequent discussions, a few participants appeared to assume that privately owned media cannot be subjected to public control. Yet there is a basic distinction between private ownership and unfettered private control. Quite simply, the fact that a television channel is privately owned does not mean that it need be immune from public regulation. Indeed, the fact that broadcasting channels have (until recently) been natural monopolies has made them targets for systems of tight regulation and licensing in most Western countries.
The distinction between ownership and regulation is seen in many fields. For example, most motor cars in Britain as in other countries are privately owned. Yet, private owners must obey a number of public regulations. Owners cannot drive a car on the public highway unless they have previously taken out insurance in case of accidents; they cannot drive the car if the tyres, lights and other parts of the vehicle do not conform to public safety standards and if they have not passed certain test carried out by authorised inspectors; the owner cannot drive the car unless he has passed a specified driving test; and so on.
In the case of mass media, private channels may similarly be subject to important regulations concerning political broadcasts.
Types of public regulation of privately owned television and radio stations include the following:
a. Anti-monopoly measures
Control of TV and radio bestows great political influence and for this reason requires especially careful and tight regulation. The main television channels are each powerful, in the first place, because TV has emerged in recent decades as by far the most popular and formative channel of communication. In the second place, technology has permitted only one, or a limited number of television and radio channels. Whereas it has been possible - given the political freedom and the will - to create numerous publishing outlets of all sizes, broadcasting has been a natural monopoly or near monopoly. (Admittedly, this situation is changing in some countries with the introduction of new technologies. Cable television is creating numerous alternative channels and is slowly challenging the dominance of the traditional television channels. But the changes are at present in their infancy.)
It is possible and appropriate to use the legal controls of monopolies that exist in a number of country to prevent or at least to limit the concentration of ownership of the media. In Britain, rules not only control the proportion of television stations that may be owned by one financial interest, but they also place limits on the extent to which owners of newspapers may invest in television and commercial radio stations.
b. General regulations and standards regarding television and radio programmes
In Britain, newspapers may advocate whatever political policy their owners and editors desire. By contrast, the legislation regarding both public broadcasting (the British Broadcasting Corporation) and commercial television and radio stations lays down that they must be politically neutral in their programming.
In the early days of television, the executives who ran the BBC considered that the only way of assuring politically neutral broadcasting, especially during general election campaigns, was to broadcast no news about the election. A later view has been that broadcasts may be `neutral' if they are balanced. Some news programmes may report one viewpoint provided that other programmes report opposing positions.
c. A ban on paid political advertisements
One regulation in a number of countries is that private television stations are not permitted to accept payment for advertisements by political parties or by other political organisations. Again, Britain is an example. Originally this ban came into operation when the director general of the BBC ruled that its charter, which required that it should act in the `national interest' precluded paid political advertisements. When Winston Churchill wrote to the director general in 1929 offering to pay £100 to be able to make a ten-minute radio broadcast on the subject of India, the director general refused, explaining that he was not willing to introduce «American» methods into British broadcasting.
d. Requirement to make broadcasting time available to parties and/or candidates for free political advertisements
One common method is to oblige the broadcasting authorities (both those in charge of operating publicly owned networks and the owners and operators of privately owned channels) to transmit party election broadcasts as condition of their licenses. Making time available for free political advertisements is a service the broadcasting networks are legally obliged to provide. As far as expense is concerned, this is obviously a cost-free way to provide assistance to the political parties - it is the broadcasting networks rather than the tax-payers who must foot the bill. (Britain is one country which uses this method.)
In countries where the legal frameworks controlling broadcasting do not permit the State to compel TV and radio channels to provide free time for parties and candidates, or if it is considered undesirable to make this demand on the owners of the broadcasting stations, an alternative (though expensive) method of securing this free time is possible. In Mexico, for example, the government provides funds to the central authority responsible for administering elections and this authority then purchases broadcasting time from the TV networks, which is then allocated to the rival parties.
It is important to note that provision of free broadcasting time for parties and/or candidates during the period that proceeds an election is the normal practice in Western democracies. The United States is the main exception. Formulas for allocating this free time are considered later.
Some of the more detailed issues involving free time for political broadcasts are discussed in an appendix to this paper.
e. Regulation of paid political advertisements in countries where they are permitted
In countries where paid political advertising on TV and radio is allowed, it is normally subject to regulations.
First, there are rules that prevent the TV networks from profiteering at the expense of the parties by demanding especially high rates for advertising time. In Canada, the rate charged to political parties must correspond to the lowest rate charged to non-political advertisers.
Second, the broadcasting networks may be required to make a certain amount of time available for political advertising during the period immediately before an election. This regulation is likely to be unpopular with the TV managers who will often resent having to limit the amount of time given to paid commercial advertisements during the pre-election period. For example, the Canada Elections Act requires every broadcasting station to make a total of six and a half hours available for political broadcasts during a period beginning on the 29th day before the poll and ending on the second day before the poll.
Third, rules commonly stipulate that a broadcasting station cannot make time available to one party for paid political advertising without making time available to other parties. It cannot say to a party - possibly one with whose views the owners of the broadcasting station disagrees - «We are sorry, but all the available time for advertisements has already been booked!» If there is only a limited total amount of time available for all paid political advertisements, and if the demand from parties for this time exceeds the supply, then there will need to be a method of fair allocation of paid time between the rival parties and candidates. This raises questions similar to those regarding the allocation of free broadcasting time, and these are discussed later.
One possible abuse is that a broadcasting station may make advertising time available to a party it favours and charge an unusually low rate. Such a reduction will amount, in practice, to a disguised political donation to the party by the broadcasting station and its owners. To guard against this possibility, regulations in Australia stipulate that broadcasting stations must make disclose in detail information about all political advertisements accepted during an election campaign and must detail the costs charged for each of them.
2. Political broadcasting during the period that immediately precedes an election versus political broadcasting during `electoral peacetime'
Clearly, the public is most interested in campaign issues during the days and weeks that immediately precede an election. However, political opinions are moulded not merely in this final period but also during the months and years of `electoral peacetime.'
Assuming that it is necessary to distinguish between the rules that apply in `electoral peacetime' and those that apply in the `pre-election' period, two issues therefore arise: first, how is the `pre-election period' to be defined? Second, what rules should apply to political broadcasting during `electoral peacetime?'
a. Definitions of the `pre-election' or `campaign' period
The question of this definition is vital whenever special rules apply to the this period. Since `electoral peacetime' and the `campaign period' are in practice indistinct, the technical boundary between them is inevitably somewhat artificial and complex. In countries such as Canada, the issue of defining `campaign' from `non-campaign' has been the subject of detailed examination by the Canadian Royal Commission on Electoral Reform and Party Financing, 1991 (The Lortie Commission.) These details can be made available if needed. For present purposes, only some brief examples will be given:
i. Australia and Canada: The `election' period lasts from the time the election writ is issued to the time until the close of polling. In Canada, too, the start of the official campaign period is the same. As far as regulations concerning paid advertisements by political parties are concerned, the Canada Elections Act, as already mentioned, defines the campaign period as the time beginning on the 29th day before the poll and ending on the second day before the poll.
ii. Britain: The campaign starts, for the purposes of spending limits incurred by parliamentary candidates, at whatever time they start campaigning. For this reason, a would-be candidate will normally arrange to postpone his nomination until after the election date has been announced by the Prime Minister. It is from the time that he has been formally nominated (usually by the local organisation of his party) that the expenses clock starts to run. Before nomination, a candidate can in practice start to `nurse' the constituency provided that he is careful to refer to himself as «prospective parliamentary candidate» but never as the «parliamentary candidate.»
iii. Japan: The length of the formal campaign period is only 12 days.
iv. Turkey: Regulations relating to the fair use of news broadcasts starts 15 days before the poll and free party political broadcasts are squeezed into the final seven days before voting day.
b. Entitlements of political parties to free broadcasting time in the period between election campaigns (`electoral peacetime')
In some countries, political parties are given time for free political broadcasts on a regular basis and even when no election is in the offing. Normally, the amount of time given for these broadcasts in `electoral peacetime' is less than during the campaign period.
A system of allocating free time to political parties during electoral peacetime will work only if political parties (or electoral associations or electoral blocks) that have contested the last election continue to exist as distinct organisational entities. If there is a split within a political party that fought in the previous election, or if a new party or electoral association comes into existence after the previous election, problems of allocation of time will arise.
Examples of free party political broadcasts in `electoral peacetime' are as follows:
i. Britain: Precise allocations vary from year to year, but the system is broadly similar to that outlined in Michael Pinto-Duschinsky, British Political Finance, 1830-1980. (Washington, DC: American Enterprise Institute for Public Policy Research, 1981, table 69.) Each of the two main political parties is normally entitled to six free party political broadcasts per annum of up to ten minutes each. (This compares with five such broadcasts during the campaign period, which usually lasts in Britain for three to four weeks.)
ii. Mexico: The 1993 amendments to the Electoral Code charged the Federal Electoral Institute with buying and allocating 15 minutes per month on television and radio for each party.
3. Regulations relating to advertisements by candidates, parties and electoral associations; regulations relating to the neutrality of news broadcasts or current affairs programmes; and regulations relating to entertainment programmes and other `non-political' broadcasts
a. Is it possible to control bias in news bulletins?
Advertising time allocated to political parties and/or candidates, regardless of whether it is free or paid for, is likely to be of relatively limited importance in persuading the voters in comparison to the daily diet of regular news broadcasts and reviews of current affairs. Even if a system of free party political broadcasts works fairly, it may be possible for state owned channels to project a pro-government line in their choice of news items and for privately owned stations to arrange for news programmes to reflect the political bias of their proprietors.
Examples of allegations of manipulation of the airwaves by governments include the following:
i. Mexico, 1994: The National Action Party (PAN) and the Party of the Democratic Revolution (PRD) accused the networks of biased coverage in favour of the PRI. They especially criticized Televisa, a network watched by 80% of the Mexican television viewers. In July 1994, Televisa ignored one of the biggest PRD rallies of the campaign, while it spent 22 minutes of air time on now-President Ernesto Zedillo. PRD has called Televisa «one of the pillars that sustains the authoritarian regime.»
ii. Malaysia,1982: «The news programmes [on television] were filled with ministers opening schools, temples, bridges, roads and virtually anything else that could be opened during the weeks before the election.»1
Ultimately, the best way to protect the public against bias such as that alleged in the above examples is to foster a tradition of professionalism and independence among the broadcasters so that professional pride will help them to resist pressures from their proprietors (public or private) to manipulate the news. However, it may also be possible to assure some fairness by introducing some rules about the composition of news bulletins, especially those in the campaign period. Two examples of this are Britain and Turkey.
iii. Britain: During the campaign period immediately before a general election, which normally lasts three or four weeks, news bulletins must give coverage to the activities of the rival parties and their leaders which is proportional to each party's entitlement to free party election broadcasts. For example, if the Labour and Conservative Parties each are entitled to five free broadcasts of ten minutes each and the Liberal Democrats are entitled to four such broadcasts, then the number of minutes of coverage given on news bulletins to each of the parties and their leaders during the campaign must also be in the ratio of 5:5:4. The same applies to the coverage of these parties in current affairs discussion programmes.
This division of time is a fairly crude device. If broadcasters are determined to favour a particular party, they may use the minutes allowed to cover its activities to broadcast favourable events in its campaign; another party - whom the broadcasters wish to damn - may be given a similar number of minutes, but these minutes may be used to portray this rival party in a poor light. In practice, this `stop-watch' method of control of news bulletins during election campaigns has nevertheless worked fairly well in Britain.
iv. Turkey: During the period that begins 15 days before the election and ends at 6 p.m. on the eve of the elections, radio and television news bulletins must contain messages that are submitted by the political parties participating in the elections. The High Election Board limits the number of words in each party's text.
Further questions arise about the rules for the broadcasting of debates such as the famous and probably decisive TV duels in the 1960 presidential election in the United States between John Kennedy and Richard Nixon. The regulation of televised political debates raises complex questions, especially where the debates have to attempt to be fair to a number of parties or candidates. International practice varies considerably regarding such debates and this important subject will not be considered in this paper.
b. Is it possible to control possible political bias in `non-political' programmes such as plays, historical dramas and portrayals of every-day life (`soap operas')?
According to some market research, the greatest influence on the political opinions of electors is exerted not by news bulletins or by party political broadcasts; more important than these are apparently `non-political' programmes. A celebrated example of this is the work of Charles Dickens, whose novels probably did more to publicise the poor conditions in parts of Britain in the nineteenth century than did the studies and pamphlets of Friedrich Engels.
At the present time, every-day dramas - the so-called `soap operas' - that are compulsive TV viewing in many countries may have a political bias. They may either show the supposedly typical characters in relatively prosperous surroundings or they may show them confronting grave social problems.
Unfortunately, it is hard to tackle such bias without at the same time imposing unacceptable restrictions on freedom of expression of authors and broadcasters. Non-legal controls may be as effective (and more acceptable) than legal controls.
4. Legal versus non-legal controls
There are three main forms of independent control of the output of broadcasting stations, one of them legal, one of them non-legal but statutory, and one of them informal.
a. The right of aggrieved political parties and individuals to appeal to the Courts
If the legislation concerning broadcasting includes a general obligation on broadcasters to be neutral or to avoid political bias, it will be open to those who feel that the rules have been broken to appeal to the Law Courts. In some cases, it may be possible for a political party to obtain an emergency injunction against a broadcast which, it feels, breaks the rules. Indeed, the law may be a useful weapon of last resort, especially if the senior members of the judiciary are politically independent. Very occasionally, British parties have successfully appealed to the Courts to stop a politically unfair broadcast.
b. Statutory review bodies
In a number of countries, there is a provision in the laws governing broadcasting for an independent committee or for a single independent regulator or arbitrator to review controversial matters relating to political broadcasts. If the review body contains a number of members, then it will usually include personages drawn from different parties and from different fields of public life (on a basis similar to the composition of a central election commission).
c. Independent, unofficial monitoring bodies
Even though these bodies rarely have an official status, they may be influential if they monitor political broadcasting and bring to light any obvious bias or lack of balance.
i. Britain: A media research group based at Glasgow University has regularly monitored television output before and during election campaigns.
ii. Another example comes from Mexico: A study done by the Mexican Academy of Human Rights on news coverage by the air programs «24 Horas» ... of the Televisa Network and «Hechos» ... of the Azteca Television Network, from January-April 1994 found that the PRI had a 3:1 advantage in total air time compared with PAN and PRD, which were the two strongest opposition parties.»2
1 H. Crouch, Malaysia's 1982 General Election. Singapore: Institute of Southeast Asian Studies, 1982, p. 38. Cited in Library of Congress, Law Library, Report for Congress: Campaign Financing of National Elections in Selected Foreign Countries. Washington D.C.: July 1995, LL95-4,95-1354.
2 Cited in Library of Congress, 1995, p. 160.
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