Media access and Regulation
Arrangements for fair media access by
candidates and parties are an important focus of electoral law. This is
especially evident where the major information media are government-controlled.
Media regulations should provide for safeguards against political censorship,
unfair government advantage and unequal access during the campaign period.
Fair media access implies not only equality of
time and space allotted, but also attention to the hour of broadcasting (i.e.
prime-time versus late broadcasting) and the placement of printed advertisements
(i.e. front page versus back page). Fair media use implies responsibility on the
part of all persons or parties delivering messages or imparting information via
the mass media (i.e. truthfulness, professionalism and abstaining from false
promises or the building of false expectations).
A valuable mechanism for assuring fair and
responsible broadcasting during election periods is an independent body charged
with monitoring political broadcasts, broadcast civic education programs and
allocation of time to various political parties, as well as receiving and acting
upon complaints regarding media access, fairness and responsibility. This
function might be discharged by representative transitional bodies, by the
electoral administration, or by a separately constituted media commission.
Securing responsible electoral broadcasting
and publication in the media can, in part, be served by agreement on a code of
conduct for the media. Such codes may be preferable as a method of media
regulation (i.e. self-regulation) to legislative or governmental action, which
might raise the issue of impermissible censorship and interference with the
human rights of freedom of information and expression.
The responsibility for
promoting professional coverage of elections in the media lies primarily with
media organizations themselves. The role of the electoral administration
is mainly to create an environment in which
this can happen.
However, there are a
number of aspects of editorial coverage where there may be specific regulations
covering what the media may or may not say and consequently the direct
involvement of the regulatory body. These areas include:
Coverage of Opinion
Many countries have
explicit regulations governing how opinion polls may be reported- indeed in some
cases, notably France, reporting of opinion poll findings is prohibited
altogether. However, as France is discovering,
total prohibition of opinion poll
reporting is no longer a practical
proposition. The argument in favor of some form of
regulation is that, especially in a new
democracy, the public may not be aware of the
limitations of opinion polling and be unduly
influenced by their findings. On the other
hand, developing professional coverage in this
area is probably best achieved by disseminating
guidelines on how to report opinion polls (…) rather than by prohibiting
The one area of
coverage where some form of regulation is usually considered necessary is
"special programming" - usually consisting of candidate debates and panel
interviews. Some countries with a long history in this area have developed
standard formats for this sort of program without any external regulation.
Others, especially newer democracies, have developed detailed rules to ensure
that all participants in the debate have fair access.
Activities and Campaigning
One way in which
election coverage is commonly abused is by manipulation of government functions
for campaign purposes. Hence, senior officials standing for reelection contrive
to place themselves in the public eye through their official functions.
This happens in
democracies the world over and is, to a large extent, a matter that should be
left to the good professional judgment of the media themselves. However,
especially where the public media are accustomed to slavish reporting of
government Ministers' every function, it may be necessary to establish
guidelines to prevent abuse.
Many countries operate
a statutory or voluntary blackout on election news at some point. Most often
this take place once voting has started, to avoid misleading and abusive
last-minute campaigning. But sometimes the blackout can extend for some days
before the election to create a "reflection period" when voters can digest all
the information they have received during the campaign.
The most common form of
"special information programming" during election campaigns is the candidate
debate. A variant of this is the panel interview.
These special formats
are unusual in that they fall somewhere between regular editorial programming
and direct access slots. Indeed, in some countries the only form
of direct access available comes as an
interview or debate.
This unusual and hybrid
nature of "special programming" means that in most places where they are
conducted a special set of rules has emerged. Sometimes these rules are
established by law, sometimes by self-regulation and sometimes by custom and
The most famous
examples of this type of programming have been the presidential debates in the
United States, dating from 1960 when a perceived debate victory by John F.
Kennedy has always been credited with securing a narrow election win over
Richard Nixon shortly afterwards. (One of the peculiarities of these events is
that the participants are always anxious to claim victory in the debates, while
pundits score them, rather like judges in a boxing contest. To the lay audience
it is not always so clear who has won.) Received wisdom now has it that Nixon,
with his five o'clock shadow, looked shifty and untrustworthy - a judgment that
at least has the support of subsequent history. But those who listened to the
debate on the radio thought that Nixon had won - it was his appearance that was
decisive. This was caused at least in part by the fact that he was in pain from
a knee injury. In the United States the rules governing these debates have
evolved by convention.
broadcasters must still abide by the equal opportunities rule made under the
Federal Communication Act. This stipulates (among other things) that a
broadcaster may choose which candidates are invited to take part in a debate,
but that those candidates who are chosen must then be afforded equal
Effectively this allows
broadcasters to exclude minor candidates from debates, which are usually
confined to the two main Democrat and Republican presidential candidates. This
has led, in 2000, to two other candidates announcing plans to take legal action
after they were excluded from televised debates.
Not everyone agrees
that candidate debates are a good thing. The main arguments against them are
Debates can create
artificial discord - perhaps a significant consideration where countries have
recently emerged from violent strife.
becomes too personalized - head-to-head debates underline the "horse-race"
nature of political campaigning, all style and no substance.
Candidates will not
agree on the need for a debate - challengers are always more likely to favor
them than incumbents.
None of these arguments
is overwhelming. It is not acceptable to refrain from vigorous discussion just
because this spilt into violence in the past. And 20-second advertising slots do
more to degrade the quality of political discourse than a lengthy live debate.
countries manage happily without them. The debate is particularly suited to
presidential campaigning. Broader campaigns in legislative elections do not lend
themselves to that type of format, although there will often be other forms of
special programming in which leading candidates will be questioned about their
Candidates are often
interviewed, sometimes in a special formalized setting.
Sometimes, as in the
2000 elections in Zimbabwe, special interviews are almost the only opportunity
that parties have to speak directly to the electorate about their policies. In
these circumstances it is advisable o have an agreed forma, although this would
not normally be set down in laws or regulations. The aim would be to have a
balance of political allegiances among the journalists conducting the interview,
as well as a balance of issues that did not reflect the agenda of one or other
Often broadcasters will
have phone-in discussions in which the electorate can address questions directly
to politicians. Such programs can suffer the deficiencies of all phone-ins -
rambling, self-important and ill-informed callers. But they can also offer
sensationally effective examination of politicians' policies. No British Prime
Minister, for example, has dared to submit him or herself to such questioning
since 1983, when Margaret Thatcher was interrogated with great forensic skill on
the British sinking of an Argentinean warship in the South Atlantic. The caller,
a Mrs Gould from Bristol, not only infuriated the Prime Minister by exposing the
inconsistencies in her explanation. She also shamed the professional journalists
whose job was to hold government accountable.
Time to Candidates and Parties
Almost invariably the
public media are thought to have a duty to publish or broadcast election
statements by competing parties. It is generally accepted that the publicly
funded media have some obligation to allow parties and candidates to communicate
directly with the electorate. Beyond that, however, there are many issues to be
Free Access, or a Mixture of the Two?
It will have to be
determined whether direct access by political parties will be free or paid or,
as is often the case, a mixture of the two. Different rules are often adopted
for print and broadcast media. Sometimes all parties are allocated free direct
access but can top this up with paid advertising. (…)
How Is the Time or
In a system of paid
advertising this may not be an issue - time is simply allocated to those who can
pay. (Many would argue that this is why paid advertising is an unfair option.)
But if direct access broadcasts are to be allocated by a regulatory body, how
will this be done? What criteria have to be taken into account to divide up the
available time? Is it to be done on the basis of equality - so that every party
gets the same time - or equitability (fairness), whereby parties are allocated
time according to the degree of popular support they enjoy. If the latter, then
how is that determined? Should time be allocated on the basis of past electoral
support (the number of seats currently held in parliament), opinion polls, the
number of candidates standing - or some other criterion or a mixture of all of
them? Different countries have adopted widely varying systems.
Timing of Slots
Will there be
regulation about the times that slots are broadcast? If everyone is to get a
chance to broadcast in peak time, how can slots be allocated? What order will
the parties be allowed to broadcast in? (…)
Who Pays - and Who
Makes the Program?
Will the party be
responsible for making its own broadcast or will facilities be made available by
the public broadcaster? And who foots the bill? (…)
Who Decides What is
Does the regulatory
body have any say in the content of direct access broadcasts or political
advertising? Can the parties say what they like? What are the limits? (…)
Whether or not a
country allows paid political advertising in broadcasting is likely to depend
heavily on the traditions in its style and ownership of broadcasting and
consequently the type of regulatory system that has evolved. Some may regard it
as curious that the issue of paid advertising for political parties or
candidates in newspapers is scarcely controversial. The practice worldwide is
almost universally the same: advertising is permitted, subject only to other
limitations such as campaign spending ceilings and sometimes restrictions on
However, the fact that
many countries have followed a different course with regard to political
advertising on radio and television can be put down to two factors:
First, the cost of
advertising on radio or, especially, television is usually much greater than in
the print media.
are either publicly owned or receive their share of the frequency spectrum from
a public body.
Of course, neither of
these factors in itself automatically leads to a prohibition on political
advertising over the airwaves. But they do perhaps explain why the approach has
countries with a long tradition of public ownership of broadcasting, such as
France, Britain and Denmark, have tended to be hostile to paid political
advertising. Those with a stronger commercial broadcasting tradition - the
States represents the
extreme - have tended to regard political advertising as natural
(…). It is notable that
the European country where commercial broadcasting is most dominant - Finland -
should also be the one where unrestricted political advertising is permitted.
This is the rough
tendency, but there are many exceptions. Canada, for example, which has a public
broadcasting tradition similar to the British, has an approach to political
advertising much closer to its southern neighbor. Nor is the issue necessarily
to do with whether a public broadcaster accepts commercial advertising. The
British Broadcasting Corporation has always maintained a strict prohibition on
commercial advertising, but French public broadcasting has permitted it since
the 1960s. Each maintains an equally strict embargo on political advertising.
A common pattern, of
course, is for the public broadcaster to give free direct access slots according
to predetermined criteria, while private broadcasters sell advertising slots to
parties and candidates, often according to different criteria. This is the case,
for example, in Germany, and was too in Italy immediately after the legalization
of private commercial broadcasting.
Activities and Campaigning
for elective office will usually try to use their official position to their own
advantage. A president up for re-election will schedule an important
international summit to underline his importance as an international statesman.
This is an inevitably, if slightly unsavory, aspect of democratic campaigning.
However, there is a
line to be drawn. If a government minister were to use his official telephone or
car for campaign activities that would be denounced (and perhaps prosecuted) as
an abuse of public funds. Sometimes the media, wittingly or unwittingly, may
abet a minister or other official in using official functions as a means of
campaigning. Often the corrective action should be directed against the official
rather than the media. Journalists rather need to be educated into making
judgements about what is the real news value of Minister X opening a new pig
farm - or whatever. In the case of the state media - funded out of public money
- a firmer hand may be needed. This is perfectly appropriate. It is not
censorship or an interference in editorial freedom, but ensuring the proper use
of public funds.
example, has laid down specific rules for coverage of official functions during
an election campaign:
Contact programs or
special programs featuring state officials or using their engagements for the
purpose of election campaign shall not be produced prior to the termination of
The reporting on the
activities of state officials performing their regular official engagements
shall not be used for a party's election campaign. (…)
In the Malawi elections
of 1999, the High Court made an important judgement relating to broadcast
coverage of presidential functions. It found that this was a perfectly normal
and proper role of the public broadcaster, but that if campaign messages were
included in such broadcasts then the broadcaster was duty bound to give
equivalent opportunity to the opposition to convey its views on the air. (…)
Such regulations may
also apply to direct access material. France, for example usually applies rules
that prohibit presidential candidates from showing their "usual place of work"
in their election broadcasts. This is intended to stop the incumbent president
from showing himself at the Elysee Palace or meeting visiting dignitaries.
It might be felt that
such prescriptions go a little too far. But few, whether in the media or in
election administration, would want to go in the direction of Venezuela. There
is specific provision for election advertising by the incumbent government .
This is not allowed specifically to call for a vote for one party, but in
practice these are scheduled alongside the advertising slots for the ruling
Once the polls have
opened, the role of the media changes from what it was during the campaign
period - and specific rules may be devised to govern this shift. In practice,
the shift may have taken place earlier (…), with an embargo placed on political
campaign reporting, opinion poll reporting, direct access broadcasts or
advertisements - or all of these.
The issues posed by a
ban on reporting during the poll become proportionally more complex depending on
how long the voting takes, as well as how large the country is.
In the later case, if
the electorate is voting across several time zones, this poses especially
complex issues since results in one zone may become available before voting has
finished in another.
In essence there are
two issues at stake:
integrity of the electoral process and the security of the vote
Ensuring that the
untimely release of information does not influence the vote in any way The first
of these is more straightforward than the second. It is usually not difficult to
strike a balance between allowing the media some sort of special access to
report on the voting process, but ensuring that voters' secrecy and security is
not breached. (…)
However, ensuring the
maximum transparency and flow of information without improperly interfering with
the process is more difficult, and a greater variety of approaches have been
Professional Coverage of Results
sounds in principle like the least complicated part of the whole election
reporting process. Yet it is remarkable how often it is very poorly carried out.
In the Zimbabwe
referendum of 2000, not a single newspaper or broadcasting station succeeded in
reporting the correct results as issued by the Registrar General's Office! A
major part of the problem lies with the media themselves - if they cannot
correctly copy a column of figures, there is little that the election
administrator can do about it.
But there is much that
can be done to promote accurate and professional results reporting. Provision of
a Media Centre will enormously facilitate media access to results. The
mechanisms of counting will vary enormously between centralized and
decentralized systems. For the purposes of media reporting, the significant
point is whether results are released centrally or locally. If the latter, then
media reporting is also likely to be decentralized.
When the latter system
of local counts prevails, as in the United Kingdom, a massive media bandwagon
has developed for projecting final results out of available results.
Provided that no
results or projections are released before the end of voting, this is
essentially harmless fun (although dressed up in great statistical seriousness).
The worst that can be said about it is that it encourages the treatment of an
election as a horse race rather than a democratic choice.
What is particularly
important, however, when results emerge gradually – especially true of a
first-past-the-post constituency system - is that all results are reported
promptly and accurately. This is a means of public scrutiny of the counting
process and lessens the possibility of manipulation of the count. It is
therefore a potentially important media function.
A rather different
aspect of results reporting is media coverage of projected results in the form
of Exit Polls and Quick Counts.
Media interest in an
election does not stop with the announcement of the result. For them it is a
continuing story, leading on to the inauguration of those who are newly elected,
the selection of a new government and so on.
For the election
authority, however, any formal regulation of the media ends with the
announcement of the result. There is one area, however, where a formal media
involvement may continue. If there are challenges to the results, this will be a
legitimate story that media will no doubt cover. It should do this in accordance
with the usual professional standards governing reporting of court proceedings.
An important twist,
however, will be if the behaviour of the media itself forms a dimension of a
challenge to results. This has been the case in some recent elections, such as
Kenya in 1997. Findings of media monitoring projects may be used as evidence and
the regulatory methods of the supervisory body may come under scrutiny.