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The «Law on the Presidential Elections of the Russian Federation» in Regulating the Media D.Skillen.
In examining the Law on the Presidential Elections of the Russian Federation in relation to the media, we cannot but look back with concern at the role played by the media in the recent parliamentary campaign. Neither the Law on the Election of Deputies to the State Duma of the Federal Assembly of the Russian Federation, nor its implementation by the Central Electoral Commission was able to prevent the media from conducting an extensive propaganda battle on behalf of certain candidates/parties and a smear campaign against others. This verdict was confirmed by international observers: the European Institute for the Media criticized the overwhelmingly dirty coverage of the elections by the most important media outlets; the OSCE, while denying any major violations to the democratic process, nevertheless lamented negative and inappropriate media coverage. The media, once a pioneer of democratic reform in Russia, has turned to old Soviet habits, using the state infrastructure to foster desired results. In this context, where even a new word «killer-journalist» has been coined to describe the worst offenders of their craft, how can a fair regulatory environment be created during the short period before the start of the early presidential campaign? To examine this proposition, we should look at two areas relating to the media: legal and ethical.
The Presidential Law, as well as the Law on the Election of Deputies to the State Duma, which it resembles in its significant points, both attempt to regulate the activities of the media and ensure that the media behave in a responsible way. However there are areas of these laws that lack clarity and are detrimental to the electoral process. This is especially the case in the definition of «pre-electoral agitation» . As we saw in the parliamentary campaign, the well-intentioned attempt by the Central Electoral Commission to restrict the media from participating in agitation so as, presumably, to prevent the illegitimate practice of purveying propaganda, did not have the desired effect. The other issue lies in the very word «agitation», which is used to restrict journalists from doing their legitimate job. Although regulation of the media is necessary, it should not be used as a straightjacket to restrict the traditional role of the media in a democratic society. In any election, the media provide two important functions : (i) a chance for candidates and parties to promote their policies and programmes and (ii) a chance for voters to receive accurate information about candidates and parties so that they can make informed choices
In so far as these laws provide equal conditions on free and paid political advertising for all candidates and parties to express their views in the media and to attract voters to its side, it can be said that the first function is fulfilled. The same cannot be said for the second function. The problem lies in the fact that these laws combine both functions, disregarding the distinction between two very important but totally different activities - political advertising and coverage of events.
Advertising, of whatever sort, has the purpose of selling a product - be it a presidential candidate or party or a commercial product. Strictly speaking, according to Article 2 of the Law on Advertising «advertising is...directed at...contributing to the sale of products, ideas and undertakings». It is a genre the public understands as not being wholly based on truth and more in the realm of «promotion» or «propaganda.» Political candidates and campaigns are promoted by advertising and public relations agencies and so-called «spin-doctors», the new more aggressive exponents of political campaigning now wide-spread in the West - but not by the media. For this reason in Great Britain, for example, broadcasters are expected to be very tough in demanding balanced coverage of events, but they are not too particular about facts presented in party political advertising because it is assumed that the public is aware that advertisements will present issues and candidates only in a positive light and that political advertisements do not necessarily reflect the gospel truth.
Political advertising then must be distinguished from coverage (information and analysis), which is the job of the media. Under Russia's current electoral laws, however, the role of the media is not clear. Although there is nothing in these laws that disqualify journalists from reporting in the normal way, the CEC's provisions and clarifications during the Duma electoral campaign have indicated that journalists cannot participate in electoral agitation: that is, they cannot «encourage or aim to encourage voters to participate in the elections» or « to vote for or against any registered candidate» (Article 8:2 of both laws). On the one hand, the CEC's position appears to be invalid in so far as journalists are not designated under the law as subjects disqualified from taking part in agitation. On the other hand, the CEC's position seems absolutely justified, in so far as journalists should not be involved in agitation.
What this means is that the definition of electoral agitation should not apply to journalists at all, nor to their job of providing coverage and analysis: it should apply only to candidates or parties. Agitation, after all, simply means advertising or promotion - which is not the role of journalists. Moreover, the very use in the definition of agitation of the word «aim» to encourage voters to vote for or against any candidate can only refer to candidates' legitimate intentions to capture an electorate. It has no relevance to the media, whose only «aim» is to provide information.
By including media coverage of elections under the terminology of pre-electoral agitation and declaring this a prohibited zone to journalists, the laws in one fell swoop restrict a fundamental right of the media in all democratic societies. If a journalist cannot say anything «for» or «against» a candidate this negates his professional duty to act as the «watchdog» of public interest. The traditional role of journalism during elections in established democracies is to provide accurate information and to ask probing questions of candidates or representatives of parties in order to reveal any hypocrisy or deception on their part (which they can get away with in political advertising) and to study the background of candidates and parties so that they can give a proper assessment and overview of their policies and statements (good or bad). This activity is conducted in the interest of the voter - to provide him with information that will enable him to make a balanced decision. If journalists had been doing their legitimate job during the Duma campaign we would have had a better idea of what policies were represented and not simply what parties were represented.
Thus, if the advertising agent works in the interests of the candidate, the journalist works in the interest of the voter. A voter cannot be expected to be an «expert» and must therefore rely on others, whose job it is, to get accurate information. If a journalist cannot say anything for or against a candidate, he becomes simply a mouthpiece for candidates' ambitions (which is in itself reporting «for» a candidate). The point is that there is very little information that doesn't incline either for or against something: information does not exist in a vacuum. Neither do facts in themselves necessarily give a whole picture. What is needed as well are impartial analysis, sound judgement and logical argument.
During the three months before the parliamentary elections, the International Foundation for Election Systems, together with the National Press Institute and sometimes jointly with the CEC and subject electoral commissions held 12 regional seminars for journalists to discuss and clarify laws regulating the media. We found that journalists were both worried and perplexed about what they could report. In theory, it was asked, is it possible to report that candidate N explained his policy in a moderate and correct manner? This statement may be «for» a candidate, but it may also be objectively true. Shouldn't the voter be informed when one candidate performed professionally, while another candidate ranted and raved? When we begin to talk about critical issues, such as a candidate's criminal associations, the voter's right to know becomes far more crucial. A number of times during the course of these seminars apologists of the law suggested that a direct link between candidates and voters without the journalist as intermediary was preferable. This again demonstrates the confusion between advertising and information. Although «direct links,» like «direct democracy,» may sound appealing, the journalist, as intermediary, is needed precisely to provide balance to the political electioneering of candidates.
Article 49:25 of the Presidential Law (56:24 of the Law on the Election of Deputies) is also problematic in the way in which it restricts coverage of political activity on television. The restriction placed on providing commentaries about the elections at the beginning of TV news programs, during a round up of electoral events or press conferences, is certainly understandable. However, CEC's clarification ( e.g. Letter to TV Centre of 23.08.99, NO 05-18/1792) that prohibits commentaries after the news bloc as well and, by implication, commentary in any other programme is of great concern. While the objective of giving accurate information to the voter is laudable, in particular in the current context of prevailing «dirty technologies,» the prohibition of political commentary and insight should not be applied to «current affairs» or «news analysis» programmes, once they are properly identified. Such an across-the-board restriction on analysis and commentary cannot be applied sensibly. It would therefore make sense to provide a definition of what is meant by news and information-analytical programming and to make sure that this type of programming is not restricted as long as it provides the electorate with responsible and legitimate political coverage
That a journalist should provide information and analysis is hardly contestable in a democratic society. The only proviso is that the information is accurate and the analysis sound. The fact that there are unscrupulous journalists and that information can be manipulated (i.e. concealed advertising) does not to take away from the value of journalism as such. In this case the Central Electoral Commission should give those journalists, who retain a sense of pride in their independence and impartiality, the chance to do their jobs properly without the threat of sanctions. The Judicial Chamber for Information Disputes of the Presidential Administration made the same point in their statement of 7 December 1999 arguing that elements of agitation in media coverage should not be used as grounds for banning journalist participation in the electoral campaign.
Of course, the CEC's intention to prevent, as far as possible, a biased and partisan media from manipulating the elections is understandable. The past two years of information wars, cynical «kompromat» and other forms of negative journalism provided ample evidence of this danger. Unfortunately, this state of affairs has come about because of a lack of regulation in the sphere of concentration of media ownership, the influence of media moguls, pressure from state and regional administrations and the recent financial difficulties of many media outlets that make them susceptible to influence in order to survive.
However, as we have seen during the Duma elections, attempting to curb the media in such an all-encompassing way is counterproductive. It is also untenable because it goes against the fundamental right of free speech and free media in a democracy. It was precisely disagreement with the CEC's interpretation of agitation that made the Ministry of the Press, Teleradio Broadcasting and Mass Communications, for example, refuse to implement the CEC's request to issue a warning to ORT ; a principled stance, whatever the politics behind it. When the Ministry did finally issue a warning late in the campaign on 14 December it was addressed to both ORT and TV Centre, although TV Centre can hardly be accused of having offended in its coverage to the same degree as ORT. 7 State-owned RTR, also a prime culprit, got away without any warnings. Yet it is precisely ORT and RTR, whose reach covers most of Russia, that are the most influential channels. Nor can it be justified that cases of government officials using their office for the purpose of agitation went largely unnoticed, or that disproportionate and mainly favourable coverage was allowed for certain politicians ( e.g. 44% share of time for Zhirinovsky on all national channels between November 28-December 4, according to the European Institute for the Media, which no doubt helped his party over the 5% barrier).
Despite the harsh potential of the law and the CEC's clarifications, which could have been restrictive, in practice the CEC did not unduly interfere with the media. The problem, rather, was that those decisions that were taken were random and arbitrary. It appears that CEC's aim was more in the realm of scare tactics which, unfortunately, did not scare the worst offenders. Nevertheless imperfect laws remain dangerous if democratic rights can be manipulated at will. Moreover, the Supreme Court's decision of 19 November 1999 in the case against the journalist Aleksandr Minkin strengthens the CEC's hand by reinforcing the position that journalists cannot take part in agitation. The problems of the Duma campaign are therefore carried over to the presidential campaign. The CEC, however, is obliged only to implement the law; it is up to the lawmakers in the Duma to amend those laws if it has concern for democratic institutions.
What, then, can be done to give journalists their freedom to provide accurate information to the voter during the presidential elections, while preventing agitators disguised as journalists from misleading the public? Obviously cases defending one's honor and dignity in ordinary courts of law where appeals can prolong a decision way past the elections, as in the case of Luzhkov vs. Dorenko in Moscow, are not satisfactory for most plaintiffs. The CEC is in the best position to enforce sanctions, but only if it is able to work quickly and fairly against genuine cases of excessive bias and concealed political advertising, leaving the rest of the media community in peace to do their job. Moreover, its power to do this has been strengthened by the new Law on the Administrative Responsibility of Legal Entities for the Violation of Russian Federation Laws on Elections and Referendums, which gives electoral commissions direct right to impose fines. Many more complaints could also be channeled to the Judicial Chamber for Information Disputes, which has demonstrated its independent stance on many occasions.
This bring us to the question of ethics. What appeal can be made to journalists or media owners if they are indifferent to ethical considerations, rich enough to pay fines or powerful enough to be confident that their TV license will not be revoked? In most western countries it is usually the threat of tarnishing one's reputation that keep quality newspapers and national channels in line, as losing the high moral ground tends to go with financial losses. In Russia where it is not only business interests but political influence that count, this is not so obvious. And although Andrei Cherkizov has spoken of the concept of a journalist pariah , I have not seen such ostracism working if a journalist has sufficiently powerful friends. In fact there have been some strange arguments put about to defend , for example, Dorenko and Leontyev's programs on the grounds that they are «personal» programs and therefore the authors can say whatever they like. Since when, I would like to know, can millions of dollars of taxpayer's money that go into broadcasting facilities transmitting to 100 million voters be used by one person simply to spout whatever prejudices come into his or his mentor's head? If he can, this is not in the public interest.
Neither is it in the media's interests to lose their reputation. If so, journalists should put their own house in order. In most established democracies, it is through professional codes of conduct that balance and neutrality of information are maintained. The CEC would do well, and deprive itself of a headache at the same time, if it made a serious appeal to the media community to regulate their own activities. After all, many of the cases of improper journalistic practice are matters of ethics and conduct . In Russia there are a number of well-formulated and principled journalistic codes , drafted and approved by journalists themselves. The Union of Journalists has its own code of ethics, as well as a Grand Jury, which was the only self-regulatory journalistic body that issued a public reprimand during the parliamentary campaign. The Charter of Television and Radio Broadcasters was signed by most of the top stations last year but, unfortunately, its signatories did not once invoke it during the parliamentary campaign despite massive violations of taste and decency. What are fine words for? There is also the Russian National Association of Telebroadcasters' Memorandum on elections, NTV's Instructions for its journalists, the Advertising Code etc ( for some of these, see the Appendix). If the task of bringing together disparate journalists and their vested interests appears overwhelmingly difficult today, there is still no better time to start than during a crisis of confidence. Journalistic professionalism and independence is, after all, a common interest. In other countries journalists tend to abide by their codes precisely because they don't want to be regulated by any outside force, which may not understand the finer points of their profession and may represent opposing interests.
If the CEC challenged the media to abide by their own rules, it would be doing the media a service. The media really has only two options: self-destruction, if the excesses of the parliamentary campaign are repeated, or self-regulation.
Dr. Daphne Skillen,
Media Program Manager,
IFES, Moscow
7 ORT conducted a fierce, systematic political campaign to destroy the name of the leadership of Fatherland-All Russia through the Sergei Dorenko Program and programs presented by Mikhail Leontyev and Pavel Sheremet. TV Centre, which supported Fatherland-All Russia and was critical of the President and the Unity party, was also culpable but in no way as vicious in its smear tactics. However the Ministry's warning was analogous for both channels although the offences were quite different: ORT was accused of systematic bias while TV Centre was found to have offended only in one interview considered as pre-electoral agitation. This will have future consequences when the licence for both channels is reviewed in May .
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