11.1 Does the media have any special responsibilities during or in the run-up to elections?
Yes, given the importance of elections in democratic societies. The media is expected to be fair and even-handed in its coverage of elections and pre-election reporting.
11.2 Is there any guidance on political advertising during elections?
Yes. Different countries deal with political advertising in different ways. Many countries, such as the United Kingdom, ban such advertising on radio and television at all times. Such a ban has been accepted without demur, as long as it is applied even-handedly and without exceptions. Where, however, political advertising is normally allowed, and restrictions are sought to be imposed during elections, they may prove contentious.
In Australia, for instance, the government sought to impose a blanket prohibition on all political advertising during elections at every level – federal, state and local. The aim of the prohibition was to reduce the pressure on political parties and candidates to raise huge sums of money to win votes and to thus reduce the risk of corruption and undue influence. However, a substitute arrangement put in place by the government which allowed candidates free airtime was so heavily weighted in favour of the established parties and against new and non-party candidates that the High Court ruled it unlawful on the grounds that it violated the ‘free communication’ guarantee implied in the Australian Constitution.
11.3 Does the media have any discretion in the manner of allocating airtime during elections?
Yes. As long as the media is even-handed and does not behave in a partisan or arbitrary manner, it is well within its rights to adopt its own policy in this area. In 1975, for example, a public broadcasting system in Germany decided that it will not give any airtime to either of the two main parties involved in a contentious referendum on the geographic status of a certain territory. When one of the parties challenged this policy, the country’s Constitutional Court ruled that, as long as the broadcaster remained neutral, it was fully entitled to deny access to either party.
11.4 In legal terms, what are the main risks that the media faces in relation to elections?
Most countries have laws in place which impose restrictions on the media during and immediately prior to elections. These are intended to ensure that elections are conducted fairly and smoothly. The laws vary widely in scope and content, but, generally speaking, they cover the following areas:
· publication of false statements of fact concerning the personal character or conduct of candidates with a view to affecting their chances at the election;
· publication of false statements that a candidate has withdrawn from an election (with a view to promoting the chances of another or other candidates).
These restrictions normally carry criminal sanctions. In addition, it is possible for the media to be sued for defamation where any false statement published lowers the reputation of a candidate..
It is important to note, however, that where a journalist is accused of publishing a false statement concerning a candidate, the statement must relate to the candidate’s personal character or conduct, and not his political behaviour or actions, in order for the charge to succeed.
Also, it is important to note that only statements of fact are caught by this offence, not statements of opinion.
11.5 What about publication of exit polls by the media?
It is commonplace for restrictions to be placed on the conduct and publication of exit polls in many countries. This is done to avoid any possibility of the results of the election being distorted by pre-judgment of the results. Normally, the law would ban the publication of any exit polls until after the voting is completed. This causes difficulties for the media in some circumstances.
For example, where there is a significant gap between the close of voting and the publication of the official results, the ban on publication of information about voter intentions and voter behaviour may seem harsh. Also, where postal ballots are involved, these may result in further delays in the publication of results. The media, however, needs to be mindful of these restrictions and to comply with them where necessary.
11.6 Are there any issues concerning the publication of advertisements which the media should be aware of?
Yes, in many countries there are strict laws on how much money a candidate can spend in connection with advertising and publicity during an election. Usually, such laws require all advertisements to be authorised by the candidate or his election agent. If therefore a newspaper is offered an advertisement by someone other than a candidate or his agent, it should refuse the offer, failing which it may be convicted of an offence.
This restriction does not, however, affect editorial endorsement of candidates.
11.7 What about reporting of speeches made at election meetings and rallies?
Here again, there are potential pitfalls which the media should be aware of. In particular, journalists need to be careful in reporting speeches or comments of an extremist nature because these may fall foul of ‘hate speech’ laws. If in doubt, it is best to paraphrase such speeches or comments in language that is not provocative or threatening, insulting or abusive.
It is also advisable for the media to avoid describing candidates with prefixes such as ‘fascist’, ‘communist’, etc.
Generally speaking, qualified privilege will apply to fair and accurate reports by the media of election meetings and rallies in much the same way that it applies to public meetings and press conferences.
11.8 What is the position of media presence at election counts?
The practice in this area varies from country to country. Most countries allow media personnel (or at least one or more representatives of the media) to remain present at election counts. Some countries (e.g. the UK) also allow photographers and TV cameramen to be present and to cover the counting. However, many countries do not allow the latter. In certain countries, the matter is left to the discretion of the Returning Officer for the count. If that is the case, the Returning Officer has a duty to be fair and even-handed in the manner in which he exercises his discretion, and the media will be justified in challenging any arbitrary decisions made by him.
11.9 Is there anything else the media should note about elections and election coverage?
Yes, in some countries the government puts in place codes of conduct during elections. These codes apply to both those taking part in elections (e.g. candidates and their agents, political parties, etc.) and the media. If any such code is promulgated, the media should abide by its provisions.