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The Mass Media in Election Campaigns: Rules and Practice M.Fedotov.
The role of the mass media in election campaigns is driven by numerous factors, mainly by national tradition, the vagaries of past history, the structural development of civil society, dominant ethical preconceptions and so on.. However, if one were to ignore the above and presume that all of us are merely subjects of law existing in a sterile atmosphere of legal relationships, one would be able to clearly see the rules of the electoral game that, in legislative terms, determine the media's role in the election campaign. Referring to laws, I primarily mean federal election laws such as the Federal Law «On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum» of September 19, 1997 (as amended by the Federal Law of March 30, 1999), the Federal Law «On Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation» of June 24, 1999, and the Federal Law «On the Election of the President of the Russian Federation» dated December 31, 1999, plus the Law of the Russian Federation «On Mass Media» dated December 27, 1991.
However, if we take a look at how these laws interact and analyze how they are being applied, we will see that the electoral game is played by entirely different rules. Real life erases the boundaries of this «playing field»: as a result, political choice is no longer distinguishable from selecting a product in the supermarket; journalism - from advertising or, in the spin-doctors' lingo, from «public relations»; and politics - from business. Thus, the nascent market economy infiltrates the social sphere and creates a «market society».
In my opinion, the lawmakers clearly felt the danger of election campaigns turning into a business venture, as they both foresaw and tried to prevent the emergence of «black PR». A review of the regulations shows that the legislators' intent was indeed to prevent an «underground» or «bootleg» election campaign and the use of shadowy media buy-outs to manipulate votes. However, as we shall see below, the means used to attain the goal were, quite often, out of line with the objective. In some cases such means completely missed the objectives, in other cases, attained them only partially; sometimes, their effect was the exact opposite.
Meanwhile, in order to protect the electoral legislation from inconsistencies with other laws, the Law «On Basic Guarantees...» included special rules that address any conflict of laws in its favor. However, since this statute establishes general rules as regards the media's role in organizing and holding the elections, it only prevails over other election laws. In any conflict with some rules of, e.g., the Federal Law «On the Election of the President of the Russian Federation», it is the rules of the Federal Law «On Basic Guarantees...» that apply (Section 7, Article 1). As regards all other Federal laws, the above law holds no special position; therefore, any potential inconsistencies between its rules and provisions of, e.g., the Mass Media Law should be subject to the generally applicable conflict of law rules.
The media play a multifaceted role in establishing representative bodies and other elected authorities. Here, a distinction ought to be made between using the media to campaign and its participation in an election campaign. In the first instance, the media mostly act as a provider of mass information services; in the second, they represent an independent institution of democracy. Indeed, both media roles described above are interrelated and indivisible: on the one hand, the use of the media by politicians eventually leads to participation of the media in the political process; on the other hand, participation of the media in the political process is ultimately a result of its use by certain political forces.
Who may use the media or be availed of media services in the course of an election campaign? Election commissions, government authorities and local governments, candidates, etc. What services are involved? Information (by way of publication and announcement) and provision of print space and air-time for election campaigns for a fee or free of charge.
What does media participation in election campaigns boil down to? The exercise of civil control at all stages of preparing and holding elections.
Such is the legislature's intent. In practice, things are somewhat different.
Media Types: Unity in Diversity
The electoral legislation subdivides the media into several categories of different legal status. Section 1, Article 39 of the Law «On Basic Guarantees...» sets apart some mass media that might be referred to as «authorized« media. The above group includes TV and radio companies and editorial offices of print periodicals: a) founded (co-founded) by government or municipal authorities, organizations, or institutions, and/or b) funded with outlays made by any government or local authorities to the extent of at least 15% of their budget during the year preceding the elections.
Notably, the use of the `and/or' conjunctive - a favorite of lawyers - allows the inclusion in this group of media which are founded by state or municipal bodies but not financed by them. And what funds would such media use to perform the functions that the law imposes on the «authorized» mass media? Media entities that used to receive financial boosts earlier but had none in the election year would inevitably find themselves in the same situation. Interestingly enough, if the editorial office of a media entity only starts receiving budgetary funding in the election year, such a media organization, strictly speaking, does not fall within the «authorized» category.
To resolve this inconsistency, one should look to those articles of the election law which indicate that government media are to cover their election-related expenses «at the expense of current budgetary funding of the said mass media» (Section 2, Article 26; Section 5, Article 40; and Section 1, Article 41 of the Law «On Basic Guarantees...»). Indeed, the law refers to budgetary funding as such, i.e., to special-purpose allocation of budgetary funds to individual media entities, rather than to the provision of benefits to certain media categories, e.g., with regard to taxes or rent. Therefore, this provision only applies to media funded from a particular budget.
Federal election laws of later vintage, such as the Law «On Election of Deputies to the State Duma...» and the Law «On the Election of the President of the Russian Federation» do not just fail to address this inconsistency but, on the contrary, give rise to new contradictions. Thus, Section 15, Article 49 of the Federal Law «On the Election of the President of the Russian Federation» contradicts Articles 40 and 41 of the Law «On basic Guarantees...» as it releases municipal media from the need to provide free information services to the candidates.
«Authorized» media carry the major burden of providing information support to the election campaign. They are charged with the following tasks:
1. to assure equal conditions for election campaigning by registered candidates, electoral associations and electoral blocs;
2. to provide election commissions with the opportunity to have certain information printed;
3. to provide free air-time to electoral commissions, so that they may keep the voters informed;
4. to provide equal free air-time to registered candidates, electoral associations and blocs during the prime hours;
5. to reserve paid air-time for campaigning by any candidate, electoral association or bloc in an amount at least equal to the amount of free air-time;
6. to allocate print space for any materials submitted by candidates, electoral associations and blocs;
7. to publish any information received from appropriate electoral commissions on cash revenues and expenditures of electoral funds, within three days of receipt; and
8. to publish the reports of candidates, electoral associations and blocs, received from appropriate electoral commissions, showing the size and listing all revenue sources of their electoral funds, as well as all expenditures actually made, within three days of receipt.
The second media category includes specialized print periodicals that formally fall into the «authorized» group yet cover no political topics. The electoral law recognizes that such media may refuse to publish any campaign materials at all, provided they take no part whatsoever in the electoral campaign. Let us describe this media category as «evaders«.
Section 7, Article 48 of the Law «On the Election of the President of the Russian Federation» permits refusal to participate in campaign activities on the part of non-government and municipal TV and radio broadcasters, editorial offices of non-government and municipal print periodicals, as well as editorial offices of government print periodicals which are issued less frequently than once a week. Specialized radio and TV broadcasters, as well as the editorial offices of specialized print periodicals may refuse to participate in election campaign coverage.
Incidentally, unlike the Law «On Basic Guarantees...», the Law «On the Election of the President of the Russian Federation» expressly states that refusal to participate in election campaign coverage and campaigning activity is construed from a «failure to notify the respective electoral commission « of the amount and terms of air-time and print space provided for the purpose of election campaigning. In this way, the law links election campaign coverage with the provision of information services for campaign purposes. It is here that the legislators' desire to prevent unlawful election campaigning under the guise of an objective «election campaign coverage» manifests itself most vividly.
However, as it turns out, the legislators' measures are not effective enough. Besides, it would be completely unnatural to demand that any mass media that refrains from placing election campaign materials for a fee should likewise refrain from covering the election campaign. Such a requirement, among other things, is virtually impossible to follow since, for example, specialized musical broadcasts taking up a lion's share of the FM band normally have no broadcast slots for election campaign, but almost always provide for short news bulletins. Should such broadcasters refrain from airing any information on the election campaign? Obviously such a requirement is excessive. Moreover, it is effectively ignored.
The third category includes mass media or their editorial offices founded by any registered candidate(s), electoral associations or blocs and are therefore exempt from the requirements of Section 1, Article 39 of the Law «On Basic Guarantees...» We might refer to them as «partisan« media. Let us note that under the election laws such a category only exists with regard to print periodicals. Meanwhile, if an election race participant is to establish a TV or radio program or a TV or radio company, it won't count as a «partisan» media entity - at least that's what the law says. Importantly, this rule only applies to media organizations founded by registered candidates and associations and, therefore, established in the course of the election campaign.
The legal regime applicable to the «partisan» media is indeed specialized: it releases them from the obligation to provide print space to all competing candidates on equal terms. Paradoxical though it may seem, according to the Central Election Commission, they may only place campaign material of their founding candidates for a charge. In addition, this category is exempt from the obligation to refrain from publishing any information that may be detrimental to the honor, dignity or business reputation of any registered candidate when such media are unable to provide such a registered candidate with the opportunity to publish, before the election campaign ends, a rebuttal or other explanation to protect his or her honor, dignity, or business reputation. Therefore, such «partisan» media organizations and their officials are no longer held liable under Article 4013 of the RSFSR Code of Administrative Offences or Article 11 of the Federal Law «On Administrative Liability of Legal Entities for Violations of the Russian Federation Laws on Elections and Referenda» of December 6, 1999.
Admittedly, this exemption from the general rules contained in Section 4, Article 53 of the Law «On the Election of the President of the Russian Federation» is hardly consistent with the requirements of the Civil Code of the Russian Federation and the Mass Media Law as regards the protection of one's honor, dignity, and business reputation. Obviously, it may not be construed as an indulgence granted to «partisan» media to release them from liability for disseminating untrue information injurious to the honor and dignity of candidates who stand for elected office. Any other interpretation would necessarily run counter to the Constitution of the Russian Federation.
Finally, the fourth category includes the mass media that do not fall in any of the first three groups and therefore may, under a contract, and for a fee, provide air-time and print space to any registered candidates, electoral associations and blocs. Let us refer to this group as «paid« media.
Importantly, both payment for and provision of print space and airtime in such media must be subject to equal terms. Besides, such payment must exclusively be made through the appropriate electoral fund; plus, it should only be made as a 100% down payment.
Equal Terms: Illusions vs. Real Life
Although electoral laws do guarantee equal media access to all candidates, electoral associations and blocs, the issue of truly assuring equal conditions with regard to both «paid» and «authorized» media entities is not that simple. One should emphasize that the legislators saw no need to define the notions of air-time and print space. As a result, application of the law remains constrained to the conventional meaning of such notions. Therefore, disputes may well arise, e.g., with regard to cable TV and cable radio, where the above terms are not applicable at all.
Neither should we discount the fact that candidates may independently determine the form and nature of their media campaign. The above opens up ample ground for artificially inflating campaign ratings within formally equal print space and air-time quotas. Therefore, the election campaign runs the risk of turning from a competition of political programs and personal qualities of the contenders, as it is meant to be, into a pageant of PR technologies and political advertising. Worse, the voters would be neither viewers nor jury members of such a pageant, but rather unwilling guinea pigs of somewhat dirty experiments.
Anticipating such a turn of events, the September 1999 Congress of Russian Journalists, held in Izhevsk in the Republic of Udmurtia, adopted a special Declaration in support of free and fair elections. In particular, it says: «Journalists may not and should not be held liable for any unlawful statements by candidates, electoral associations and blocs, which the media disseminate during the election campaign. Once the law entitles the candidates, associations and blocs to `independently determine the form and nature of their media campaign', it is they who should be responsible for the content of campaign materials. In addition, the above should force media executives to refrain from covert campaigning and especially `negative campaigning' that turns journalists into the `cannon fodder' of election battles».
Seeking to guarantee equal conditions to contenders, the electoral laws prohibit candidates from taking advantage of their office. However, for some reason the prohibition only applies to government and municipal officials, as well as to journalists. Registered candidates that work for mass media should be released from their official duties for the duration of their campaign; they may not participate in election campaign coverage through any media entities. In addition, journalist candidates are prohibited from covering the election campaign through any mass media entity. As a result, the journalist candidates are discriminated against and, for the election campaign period, stripped of their professional rights. Besides, violation of such provisions by a registered candidate constitutes a valid ground for de-registration.
The legislators' logic is clear: initially a journalist has an advantage thanks to regular media access. However, does not a «rank-and-file» oligarch with financial resources and mass media of his own enjoy much stronger electoral capabilities compared to any journalist? Do not show business stars enjoy continual access to voters' minds? Seemingly, the problem defies resolution by merely expanding the list of persons subject to certain restrictions. Apparently, the very design of the «equal terms» institution has some organic flaws, which the legislature is still to address.
Meanwhile, in real life, journalists, government servants, and municipal officials alike ignore the election law requirements that prohibit them from taking advantage of their office. For instance, during the 1999 State Duma campaign, Alexander Nevzorov, a TV anchorman running for a single-mandate district, provided regular comments on electoral events in the ORT current affairs programs. Another journalist-cum-candidate, Alexander Minkin, appeared in newspapers and on NTV shows just as often, effectively participating in election process coverage.
As to government and municipal officials, the database maintained by «Informatics for Democracy: 2000+», a non-government project, contains information on fifty-something cases where these individuals took advantage of their office. Such cases were established though public monitoring via the Internet (see www.indem.ru/idd2000). Normally, a candidate holding some government office does not violate the law directly, opting instead for a scenario where his or her opponent is apparently attacked by third parties, outside the election context, and for reasons that seem fairly lawful, at least at first.
That is why the above declaration in support of fair elections requests numerous state and municipal authorities vested with supervisory, controlling, regulatory, and licensing functions to display utmost restraint throughout the election campaign period and take no repressive measures against mass media covering the elections, except in cases of a direct and unavoidable threat to vital public interests. «Throughout this period», says the Declaration, «we request them to refrain from withdrawing licenses, sealing editorial offices under the pretext of fire safety or public hygiene, disconnecting transmitters, etc. In any case, punitive measures or restraints ought to be commensurate with the actual damage caused. Administrative repression against the mass media should never become an election tactic. Therefore, each such case should be viewed as a criminal offence of obstructing journalists' lawful professional activity and an attempt to introduce indirect censorship; it should attract an immediate response by election commissions, the procurator's office, and courts of law».
Responsibility vs. Irresponsibility
The «equal terms» institution also requires that TV and radio newscasts display no preference for any candidate, electoral association or bloc. At the same time, any journalist may obviously have his or her own opinion, and it would be unconstitutional to demand that such an opinion be withheld. However, as the «rules of the game» governing the election campaign dictate, the journalist's role involves comparing opinions, impartially analyzing various positions and representing the audience. He or she should be equally disengaged from all candidates. Otherwise, he or she reverts to the infamous role of «collective propagandist and collective campaigner».
In fact, Russian media have already initiated the development of their own operational rules to be followed during the election campaign period. For instance, a special internal memo of NTV, a private TV company, contains a number of recommendations. Journalists are prohibited from: manifesting their political sympathies or aversions in any way whatsoever; replacing information on campaign events with their own opinions; using unverified information; using incidental statements by candidates unless they contain substantial information on their positions; using too much street polling; encouraging offensive actions or statements by candidates; resorting to political labels and slurs, etc.
Certain deontological rules are likewise contained in the above Declaration. «During the election campaign period,» it says, «media workers must be particularly thorough in following the requirements of law, rules of professional ethics and journalists' code of behavior, including those referred to in this Declaration, so as to avoid any doubts about honesty, impartiality, proper balance and newsworthiness of their materials and broadcasts and to avoid undermining the media's reputation and confidence in fair election results. Let us remember that a journalist pursuing his or her professional objectives is recognized as a person discharging their public duty. Serving the public and the public good should motivate journalists, rather than private interests, mercenary or institutional considerations. In this regard, we reiterate our commitment to the conception of journalism as a free profession that seeks public good and resolutely denounce any attempts at bribing journalists and putting pressure on them».
Unfortunately, during the 1999 State Duma campaign, the Russian public had ample opportunity to find out how far the rules of law and professional ethics of journalism are removed from the actual practice of some media entities. The above may be illustrated by a certain case about which the Central Election Commission of the Russian Federation and the Grand Jury of the Union of Russian Journalists had identical views.
Representation No. 39/420-3 by the CEC of Russia «On Restricting Unlawful Campaign Activities and Initiating Proceedings against ORT TV/Radio Broadcasting and its Officials» dated October 29, 1999, notes: «The materials of the current affairs show entitled «Sergey Dorenko's Own Show», as reviewed by the working group, gives evidence that its anchorman campaigns against the leaders and the entire federal list of the Fatherland-All Russia electoral bloc». Since «the TV and radio broadcasting organization and its officials (including anchormen) are not independent subjects of campaign activities», the CEC of Russia requested the Ministry of the Russian Federation for Press, TV/Radio Broadcasting and Mass Media «to take measures to restrict the unlawful campaign activities pursued by ORT TV/Radio broadcasting organization connected with the preparation and airing of the current affairs program entitled `Sergey Dorenko's Own Show' and subjecting the organization and its respective officials to penalties stipulated by the legislation of the Russian Federation».
However, the Ministry disagreed with the CEC of Russia and declined to «take measures» against ORT. On its part, the Central Election Commission refrained from using its right to draw up statements of administrative offences and to refer the «Sergey Dorenko Case» to a court of law under Section 408 of the RSFSR Code on Administrative Offences (»Violation of Rules Governing the Conduct of the Election Campaign, Referendum Campaign in Print Periodicals and on the channels of TV and/or Radio Broadcasting Organizations»).
On the contrary, the Grand Jury of the Union of Russian Journalists, on behalf of the entire press community, has unequivocally distanced itself from Sergey Dorenko. In its resolution of November 19, 1999, the Jury states that various episodes of Sergey Dorenko's current affairs show mixed news and views, presented opinions and interpretations as established facts, aired damaging information without taking due measures to verify it by reference to the subject of such criticism, failed to observe the requirement for qualitatively equal presentation of accusations and defenses and waged an information campaign deliberately intended to discredit individuals and organizations. The Grand Jury concluded that Sergey Dorenko may no longer call himself a journalist, since he has violated key provisions of the International Declaration of the Journalists' Code of Conduct that bind one to only cite facts personally established by the journalist, to only use decent methods for obtaining information, and to use one's best efforts to correct any published information in the case that it is found to inflict damage by distorting the truth.
Meanwhile, the Grand Jury emphasizes that «any restriction of the journalistic right to gather and disseminate accurate information on any candidates to elected offices is absolutely inadmissible». This way, the Jury started an ex-parte dispute with Russia's CEC on the issue of whether the media may during election campaigns continue to fully discharge their social functions of informing the audience or should limit themselves to presenting events without any comment and providing air-time and print space to campaigners such as candidates, electoral blocs and associations and their agents. Obviously, the media not only may, but must bring to the public's notice any information they gather, provided they do not cross the line that separates objective information from campaigning. On the contrary, bringing the media down to the level of «information service provider» may turn an election campaign into a mechanism for open manipulation of the voters' will.
In the case that an election commission finds any violation of electoral legislation in media activity, it may go to law enforcement authorities, courts of law, and executive authorities of government in charge of the national media policy, requesting them to suppress any unlawful campaign activity and subject the TV and/or radio broadcasting organization or the editors of the print periodical to any penalty established by the legislation of the Russian Federation.
However, what is the penalty in question? In those cases where the law holds editorial officials liable, the answer is simple: a violation of election campaign conditions by a media entity or a journalist is punishable by a fine, to be imposed on the editor-in-chief, other executive, or the journalist (Article 408, RSFSR Code of Administrative Offences). In addition, not only individuals, but organizations may be held liable under the Federal Law «On Administrative Liability of Legal Entities for Violations of the Russian Federation Laws on Elections and Referenda» of December 6, 1999. In fact, either an election commission or its members are entitled to draw up a statement of offence.
In the case that liability extends beyond the limits of the above law, the problem grows more complicated. On the one hand, reference to executive authorities of government in charge of national media policy in Section 9, Article 45 of the Law «On Basic Guarantees...» testifies to the legislators' intent of bringing the registration authorities into the picture. However, the media law only authorizes the registration authorities to deal with cases that involve the misuse of mass media freedom, violations of the procedure for declaring printing details and providing mandatory copies, or invalidation of a registration certificate. On the other hand, it does not follow at all from the law that the legislature considers a violation of campaigning rules by the editors of a media entity as an instance of misusing mass media freedom or, for example, omitting the publisher's imprint.
One may, of course, surmise that the Law «On Basic Guarantees...» introduces an independent corpus delicti. However, in such a case, the reference to «liability established by the legislation of the Russian Federation» defies understanding. Obviously, the liability mechanism cannot operate through analogies and rough estimates.
Finally, even providing that a violation of campaigning rules by the editors does constitute a misuse of mass media freedom, the only form of response by the registration authority may be a warning. Only if the editorial office has two or more warnings on its record may the registration authority sue for termination of the media entity. As regards the suspension of any media business, the law views this as an interim measure, rather than a penalty.
A Tool of Civil Control
The role of media in the formation of elected bodies of government also includes civil supervision of all campaign events. This is why the Law «On Basic Guarantees...» recognizes that media representatives have the following rights:
a) to attend the election commission meetings and any working sessions with election-related documents (Section 1, Article 26);
b) to be present at polling stations on voting day, from the time the precinct election commission begins its work until receipt of a message that the higher election commission has adopted a protocol of the voting returns (Section 3, Article 26);
c) to be present on the premises of other election commissions when they determine vote returns, results of elections, compile relevant protocols on vote returns, election results, or while recounting the votes (Section 5, Article 26);
d) to examine the protocol of the voting returns of the precinct election commission and the protocols of the voting returns or results of the elections of other election commissions; to make and have certified by the appropriate election commission or to receive therefrom any copies of the said protocols and documents attached there to (Section 11, Article 26);
e) to be informed of the re-drawing of the voting returns protocol by the election commission, in case any slips of the pen, typographical errors or arithmetic errors are found in the original protocol (Section 9, Article 57);
f) to receive for examination from election commissions vote returns for each electoral precinct and territory, and election results for an electoral district, including any data contained in the protocol of the relevant election commission (Section 1, Article 60); and
g) to receive general information on election results in the electoral district, referendum results from the election commissions that registered candidates, within 24 hours after the election results are determined (Section 2, Article 60).
Mikhail Fedotov,
Doctor of Law
Secretary,
Union of Russian Journalists
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