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Memorandum on the Draft Election Code of Ukraine by ARTICLE 19

SUMMARY OF RECOMMENDATIONS   

INTRODUCTION    1
1. INTERNATIONAL STANDARDS    2
2. ANALYSIS OF THE DRAFT LAW    4
2.1. General Observations    5
No recognition of the right to freedom of expression    5
No definition of media    6
No requirements for transparency of campaign spending and open access to the meetings of the election commissions    6
2.2. Regulation of the media in election times    7
The Media as a Provider of Election Information    7
Rules Concerning Election Campaigns    11
Measures to protection the media at election times    15
2.3. Guarantees for the right of individuals and political parties to freedom of expression in election periods    16
The Right to Election Campaigning    16
The Right of Reply    18
2.4. Enforcement of the draft Code    20

 

About the ARTICLE 19 Law Programme

The ARTICLE 19 Law Programme advocates for the development of progressive standards on freedom of expression and access to information at the international level, and their implementation in domestic legal systems. The Law Programme has produced a number of standard-setting publications which outline international and comparative law and best practice in areas such as defamation law, access to information and broadcast regulation. These publications are available on the ARTICLE 19 website: http://www.article19.org/publications/law/standard-setting.html.

On the basis of these publications and ARTICLE 19’s overall legal expertise, the Law Programme’s operates the Media Law Analysis Unit which publishes around 50 legal analyses each year, commenting on legislative proposals as well as existing laws that affect the right to freedom of expression. The Unit was established in 1998 as a means of supporting positive legal reform efforts worldwide, and our legal analyses frequently lead to substantial improvements in proposed or existing domestic legislation. All of our analyses are available online at http://www.article19.org/publications/law/legal-analyses.html.

If you would like to discuss this Memorandum further, or if you have a matter you would like to bring to the attention of the ARTICLE 19 Law Programme, you can contact us at the address listed on the front cover or by e-mail to legal@article19.org.


This Memorandum was produced within the framework of the International Media Support Media and Democracy Programme for Central and Eastern Europe and the Caucasus.
 
SUMMARY OF RECOMMENDATIONS


Recognition of the right to freedom of expression and its protection
•    The protection of the rights to freedom of expression and information should be recognised as a basic principle in both election information provision and election campaigning;
•    Any interference with the right to participation in election campaigning should be recognised as interference with the right to freedom of expression and as such it should meet the three-part test established by the international freedom of expression standards, including the European Convention of Human Rights.

Definition of media
•    A definition of the media subject to the legal regulation should be included in the draft Code to ensure that those using new media can freely express themselves during elections.

Access to information with respect to election campaign spending
•    Full disclosure before and after elections of sources and amounts of financial contributions and types and amounts of campaign expenditure should be made mandatory;
•    All information on contributions and expenses made in relation to the elections should be publicly available;
•    Meetings of the central and local election commissions should be open to everyone, including the media.

Differentiation between public and private media
•    With respect to provision of election information and the requirement of impartiality, balanced reporting and equitable access of candidate to media, private and public media should be subject to different regimes of regulation for the purpose of ensuring media pluralism.

Requirement for balanced reporting
•    A clear definition of “balanced reporting” of information should be provided by the Election Code;
•    The obligation for balance reporting should apply to broadcasting media and to print media owned by public authorities only;
•    The obligation for balanced reporting should apply to private broadcasters only with respect to news and current affairs programmes.

Requirement for equal treatment to all candidates:
•    Only broadcasting and print media owned by the state and local administration, should be obliged to give equal treatment to all candidates when reporting information about them.

Restriction on value judgment
•    Article 197 para 2 of the draft Code, prohibiting editorial comments or other value judgments regarding candidates, should be removed.

Reporting of the activities of incumbent candidates
•    Reporting of messages of incumbent candidates should be suspended few months prior to elections except in urgent matters.

Ban on inadequate or slanderous information
•    Article 202 para 2 providing for a special regime of liability for distribution of slanderous and inadequate information should be removed.

Restrictions on the right to freedom of expression in election campaigns
•    Article 202 para 1 should be revised whereby the restrictions on calls for national independence and undermining national security should be removed.

Restrictions on advertising
•    Article 199 para 5 should be revised whereby only advertisements with political purposes shall be deemed political;
•    State/public media should carry messages of political parties and candidates free of charge.

Reporting of opinion polls
•    The ten-day prohibition period for publication of results of election polls before voting day should be reduced to three days;
•    Article 198 should be revised whereby the prohibition on participants of interactive audience polls to comment on their results should be removed.

Protection of the media against interference by public authorities and private businesses
•    The Election Code should explicitly prohibit public authorities and private businesses from interfering in the activities of journalists and media outlets at election time. If other laws ensure such protection, the draft Code should include a reference to them.

Protection against attacks and intimidation of the media
•    The Election Code should explicitly oblige state bodies to protect journalists and the media against attacks on them during elections or refer to laws which impose such an obligation.

Recognition of the right of voters to election information
•    Article 191 of the draft Code should be revised to recognise a right of voters of election information.

Exclusions from participation in election campaigns:
•    Article 203 para 1 should be revised to allow everybody as opposed to Ukrainian voters only to enjoy the right to discuss freely and fully political, business and personal qualities of candidates, election agendas and activities of candidates;
•    Article 203 para 2, 1) should be revised whereby the prohibition on foreigners and stateless people to participate in concerts, performances, sport competitions, and other public events held in support of candidates should removed;
•    Article 203 para 2, 2) should be revised to allow officials of national executive bodies to participate in election campaign in their private capacity. These persons should be prohibited only to use their official capacity to support political candidates;
•    Article 208 para 3 banning foreign media registered in Ukraine from participating in election campaign should be removed.

Protection of the right to participation in election campaigns
•    The Election Code should strengthen the protection of the right to participate in election campaigns by including a provision which requires that all restrictions of this right must be based on law, pursue a legitimate interest and must be necessary in a democratic society.

Recognition of a right of candidates to access to state/public media
•    The Election Code should recognise a right of political parties and candidates of access to state/public media.

Protection against attacks, intimidation or other types of unlawful pressure aiming at restriction of free expression during elections
•    The Election Code should protect the right to freedom of expression by including a separate provision referring to the specific legislation defining legal responsibility for perpetrators of acts aiming at restriction of free expression during elections.

The right of reply
•    The right to reply should be guaranteed in cases of inaccurate facts as opposed to inadequate information;
•    The specific length of replies should be replaced by providing for “equivalent replies”
•    Replies to inaccurate information appeared in the publication’s last issue before the election should not be published in an extraordinary issue but in another outlet before the voting day.
•    The Election Code should provide for exceptions of the right to reply in accordance with Recommendation Rec (2004) 15.
•    The Election Code should establish a dispute settlement mechanism in cases when the media refuses to publish a reply.

Oversight and enforcement mechanisms of the rules concerning media in election times
•    The enforcement regime of Chapter V should be strengthen by
o    vesting powers to an independent body to oversee the rules relating to the media in election times;
o    ensuring that this body can address complaints promptly;
o    guaranteeing a right to judicial review of the decisions of the oversight body;
o    vesting powers to broadcast regulator to monitor different aspects of broadcast media coverage of elections.
•    The harsh sanctions in Article 209 para 7 should be replaced with fines;
•    The Election Code should specify what amounts to gross violation of its norms.

Protection of the media in cases of unlawful statements by others in direct broadcasts
•    The Election Code should exempt the media from legal responsibility for unlawful statements made by political candidates in direct broadcasts, unless the media outlet concerned has either taken specific steps to adopt the statements, or where the statements are clearly illegal and the media outlet had an adequate opportunity to prevent their being disseminated.
 
INTRODUCTION

This Memorandum examines the proposed legal framework ensuring freedom of expression and media freedom in elections in Ukraine. It focuses on those provisions of the draft Election Code of Ukraine (the draft Code) that deal with media coverage of elections and the right of voters and candidates to seek, impart and receive information in view of their participation in the elections.  The purpose of the Memorandum is to determine to what extent the proposed regulation meets international freedom of expression standards and best practices in the examined area.

From freedom of expression’s point of view, four issues are central to the election process. Firstly, the media outlets should be autonomous, in particular they should remain free from political or corporate interferences. Secondly, the media should be pluralistic and diverse in content, views and formats. Thirdly, voters and parties and candidates should not be prevented from imparting, seeking and receiving information and ideas relevant to their participation in elections.  Fourthly, in view of the state duty to organise free elections, the legislation should provide mechanisms allowing access of election candidates to the media. In view of the foregoing, the purpose of international standards relating to free expression in election times is to guarantee media’s autonomy and pluralism and the right of all election participants to freedom of expression.

ARTICLE 19 welcomes the decision of the Ukraine legislator to merge several election laws into one code. The following aspects of the new legislation are positive: the broad scope of the regime of election information, the detailed regulation of election campaigning and the regimes of holding of public campaign events, and of production and distribution of campaign materials. The draft Code sets out a complex regulatory framework of the media covering all forms of their participation in elections: on the one hand the media provide information about the campaign while on the other they are arena for debates and distribute election campaign materials.

However, the draft Code suffers from a number of weaknesses from freedom of expression point of view. The most serious one is the failure of the drafters to recognise that the participation of voters and candidates in election campaigns is an expression of their right to freedom of expression. In this respect, all international principles concerning this right should be taken into account in the regulation of the election campaign activities and most importantly in the restrictions on the media and candidates. The failure to recognise the freedom of expression aspects of the regulation has weakened the protection of the right to freedom of expression. Furthermore it has permitted unnecessary restrictions on reporting and on participation of certain groups of individuals in election campaigns.

This Memorandum consists of two parts: In the first part, we present the relevant freedom of expression standards. In the second part, we analyse the draft Code, focusing on the legal regime of the rights to freedom of expression and information; the regulation of the media in election context, the guarantees of the right of individuals and political parties to freedom in election time and the enforcement procedures of the draft Code.

1. INTERNATIONAL STANDARDS

The right to vote and the right to freedom of expression
Under Article 25 of the International Covenant on Civil and Political Rights (ICCPR) “every citizen” has “a right and opportunity without [distinction of any kind]  . . . to vote and to be elected at genuine periodic elections.” According to Article 2 of ICCPR, states have an obligation to ensure this right. From this obligation follows the duty of the authorities to ensure that electors have the necessary information to register and vote.

Furthermore, Article 19 of the ICCPR grants “everyone”, including political parties and candidates, a right to hold an opinion without interference and impart their views and ideas freely. At the same time, Article 19 provides for a corresponding right of the public to seek and receive those views and ideas. The protection of the ICCPR extends to information and ideas “of all kinds … [expressed] either orally, in writing or in print, in the form of art, or through any other media”. In a similar wording these rights are guaranteed by Article 10 of the European Convention of Human Rights (ECHR).

Article 1 of the ECHR obliges states to secure to everyone within their jurisdiction the right to freedom of expression. The obligation establishes two duties of state authorities: 1) to adopt such legislative or other measures as may be necessary to give effect to the rights protected by the treaty, and 2) to remedy violations of those rights. (…)

Both ECHR and ICCPR set forth the same three-part test for determining the legitimacy of restrictions on freedom of expression: 1) any restriction must be provided by law; 2) it must serve one of the legitimate purposes expressly enumerated in their texts ; and 3) it must be necessary in a democratic society. With respect to the last prong of the three past test, the European Court of Human Rights has pointed out that democratic society is based on the concepts of “pluralism, tolerance and broadmindedness”.


Freedom of expression in the context of elections
The European Court of Human Rights (the European Court) has further developed the standards of media freedom during elections deciding on a number of cases concerning complaints of violation of the ECHR in particular restrictions on election reporting, debates and campaigns. According to the European Court, the right to freedom of expression and the right to free election are inter-related and operate to reinforce each other. The Court stated:

Free elections and freedom of expression, particularly freedom of political debate, together form the bedrock of any democratic system. … [I]t is particularly important that in the period preceding an election that opinions and information of all kinds are permitted to circulate freely.  

The European Court has recognised that the media play a significant function of ‘public watchdog’ by exposing possible wrongdoing, corruption and maladministration on the part of elected representatives and, by extension, holding both the incumbent and other candidates accountable during the election period.  

The Council of Europe has adopted two recommendations concerning media coverage of elections: Recommendation No. R (99) 15  and Recommendation No. CM/Rec(2007) 15 .

Furthermore, in 2002, upon request by the Parliamentary Assembly of Council of Europe, the Venice Commission adopted a Code of Good Practice in Electoral Matters (Code of Good Practice),  which includes expansive rules both on the run-up to the election, the election themselves and on the period immediately following the vote.

The Member States of the Organisation of Security and Cooperation in Europe (OSCE) have made a number of commitments concerning freedom of expression during elections.  In the Copenhagen Document, the states pledged to observe a long and detailed list of elections rules, declaring that

that among those elements of justice which are essential to the full expression of the inherent dignity and of the equal and unalienable rights of all human beings are . . . free elections that will be held at reasonable intervals by secret ballot or by equivalent free voting procedure, under conditions which ensure in practice the free expression of the opinion of the electors in the choice of their representatives.

In his reports, the United Nations Special Rapporteur on Freedom of Expression enunciated a number of principles that should be respected in order to ensure a transparent, open and pluralistic electoral campaign in the media.  The reports provide additional guidelines aiming at guaranteeing free expression during the electoral campaign.
 
In 2009, the four special mandates on freedom of expression – the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, the Organisation of American States Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information issued Joint Statement on the Media and Elections (Joint Statement) . Highlighting the key role of the media in framing electoral issues and informing the electorate, the four special mandates call on states to adopt a number of measures supporting free expression during elections. Among these measures are rules against discrimination in the allocation of political advertisement, entrusting all regulatory powers to independent bodies, exemption of the media from liability for disseminating unlawful statements made directly by parties or candidates, etc.

Specific rules relating to broadcast coverage of election campaigns have been set out by ARTICLE 19 in the Guidelines for Election Broadcasting in Transitional Democracies (ARTICLE 19 Guidelines).  The rules are built on international standards on broadcasting during elections and best comparative practice, and thus represent a goal to which all countries holding elections should aspire.


2. ANALYSIS OF THE DRAFT LAW

Chapter V of the Election Code regulates election information support and campaigning. The chapter contains two sections. Section XV concerns election information support while Section XVI relates to election campaigning. The first section consists of eight provisions setting out obligations for the Central Election Commission, the head of election commission of the respective local election to make arrangements for the provision of information for the elections. These arrangements include production and provision at the polling station of information posters explaining the voting procedure and liability for violations of the election legislation  and of information booklets of the parties. The publication costs are to be covered from the budget allocated for the preparation and holding of elections . The draft Code also imposes a number of obligations on the media for dissemination of election-related information.

Section XVI on election campaigning consists of 15 provisions relating to the form and methods of campaigning, election campaign financing, campaigning period, general restrictions on election campaigning, different types of campaigning such as public campaigning events, production and distribution of printed campaign materials, outdoor advertising, including campaigning in the transport sector, use of mass media both electronic and print, debates, and the right of reply.

This Memorandum reviews the provisions of the Chapter V by examining separately the following regimes: 1.) the regime of access to election information; 2.) the regime of provision by the media of election information; and 3.) the regime of election campaigning by the use of the media. We differentiate between provisions concerning all media and specific provisions concerning print, broadcasting and foreign media. At the end, the Memorandum reviews the safeguards for protection of individual’s right to freedom of expression during elections and the mechanism for enforcement of the draft Code, including the liability of the media and the recognition of the right of reply.

Before proceeding with our comments on the media specific provisions, we make some observations regarding the legal safeguards of freedom of expression in the draft Code.

2.1. General Observations

No recognition of the right to freedom of expression
ARTICLE 19 observes that the draft Code is silent with respect to the right to freedom of expression and more specifically media freedom. Even though several rights defined by the draft Code, such as the right to participation in the elections and the right to election campaigning, relate to the right to freedom of expression, no provision obliges state authorities and businesses to respect freedom of expression and media freedom in election times. Without an explicit recognition of the right to freedom of expression, the draft Code fails to confirm that the principles and safeguards established for protection of free media and expression apply in the election context.

More specifically, the draft Code does not require that any restriction of expression – whether in the form of speech or distribution of leaflets or other forms – should meet a three-part test in order to be in compliance with the law. The elements of this test, as explained above, include: 1) The restriction should be set out by law; 2) The restriction should pursue a legitimate; and 3) The restriction should be necessary in a democratic society. Without recognition of this international standard, the draft Code fails to ensure that any action restricting freedom of expression in elections should be assessed not only for its compliance with the legislation, but for whether it was necessary in a democratic society. As a result many future restrictions on freedom of expression in elections risk being in violation with international standards even though they are in compliance with the Code.

On the basis of the foregoing ARTICLE 19 recommends that the Election Code explicitly recognise the protection of the rights to freedom of expression and information as a basic principle in both election information provision and election campaigning and include the three-part test for assessment of any restriction to these rights. Furthermore, the connection between the right to freedom of expression and the right to participate in election campaigning should be highlighted by setting out that any interference with the right to participation in election campaigning which amounts to interference with the right to freedom of expression should meet the three part-test established by the ECHR.

Recommendations:
•    The protection of the rights to freedom of expression and information should be recognised as a basic principle in both election information provision and election campaigning.
•    Any interference with the right to participation in election campaigning should be recognised as interference with the right to freedom of expression and as such it should meet the three-part test established by the European Convention of Human Rights.


No definition of media
The draft Code uses the generic term ‘media’ without providing a definition of this term.

The lack of a definition is problematic in view of the risk of enforcement of the legal regimes with respect to persons and institutions which disseminate information by new media such as bloggers or social media users. ARTICLE 19 notes that such enforcement will be in violation with international law. In support of this position, we refer to Recommendation CM/Rec(2007) 15 on media coverage of elections  providing that the media regulation applies to those media responsible for the periodic creation of information and content such as print media, broadcast media, onlines edition of newspapers and newsletter and non-linear audiovidual media service. It means that media regulation should not apply to bloggers and social media users, who sporadically create and distribute information.

ARTICLE 19 recommends that the Election Code include a definition of the media following the standard in Recommendation CM/Rec (2007) 15. The definition will ensure that users of new media, including bloggers and website owners, can freely express themselves during elections, including by participating in the election campaign by videos, audios and verbal postings on the Internet.

Recommendation:
A definition of the media subject to the legal regulation should be included in the draft Code to ensure that those using new media can freely express themselves during elections.


No requirements for transparency of campaign spending and open access to the meetings of the election commissions
ARTICLE 19 is concerned that Chapter V of the draft Code does not contain provisions aiming at transparency of campaign spending. We note that one of the simplest and most effective ways to promote transparency in campaign spending is to require publication of the campaign fund accounts.  Therefore, we recommend that the Election Code imposes a requirement of full disclosure, before and after elections, of sources and amounts of financial contributions and the types and amounts of campaign expenditures. This information should be publicly available.

Furthermore, in line with the Code of Good Practice in Electoral Matters, ARTICLE 19 recommends that the Election Code provide that meetings of the central and local electoral commissions be open to everyone, including the media.

Recommendations:
•    Full disclosure before and after elections of sources and amounts of financial contributions and types and amounts of campaign expenditure should be made mandatory;
•    All information on contributions and expenses made in relation to the elections should be publicly available;
•    Meetings of the central and local election commissions should be open to everyone, including the media.


2.2. Regulation of the media in election times

For the purposes of regulation, the draft Code has defined two roles of the media. Firstly, the media are providers of “election information”. Secondly, they are the arena in which candidates can debate.


2.2.a. The Media as a Provider of Election Information

Overview

Article 191 of the draft Code defines the media and news agencies as providers of election information. While the provision of general election information is mandatory for all media, the latter may refrain from reporting on the election process.

As a provider of election information, the media are obliged to provide general election information which includes information on citizen’s rights, election procedures, complaint mechanisms and liability for violations of voting rights. According to Article 195 para 1 of the draft Code, the media do not have discretion regarding the content of the general information. The information is to be provided by election bodies on the basis of a procedure to be developed by the Central Election Commission.

On the other hand, the media are not obliged to provide information about candidates and report on the electoral process. If they choose to do so, they have to observe the requirements of the draft Code. These requirements include observance of:

•    the principles of reliability, completeness and accuracy of information,  
•    the principles of objectivity of information and impartiality of reporting,  and
•    the obligation of balanced reporting of information about candidates and political parties.

The draft Code established that the media determines the prices for print space and airtime and sets out rules thereof.  These include the principle of equal pay for unit of airtime or print space, the prohibition for changes of the unit price during electoral process, the mandatory notification of the unit prices.  

Further, the draft Code set out special rules concerning broadcasters’ participation  and reporting on results of opinion polls .

Analysis

The regime of provision of information on elections is comprehensive, detailed and in compliance with the established international practice. Alike many legal regimes across Europe, the draft Code differentiates between responsibilities of the media to disseminate election-related information and to report about elections. However, we are concerned the draft Code makes no difference between public and private media and as a result of it imposes on private media a requirement for balanced reporting, which is not necessary in a democratic society.

The failure of the draft Code to differentiate between public and private media is in contradiction with international standards which take into account the different nature and purpose of public and private media. For example, Recommendation (2007) 17 defines special rules for public media recognising their responsibility to ensure in their programmes a fair, balanced and thorough coverage of elections, which may include the carrying of messages of political parties and candidates free of charge and on an equitable basis.  In contrast, international standards do not require private media to provide general information about the elections, specific information about the candidates. Neither are private media obliged to respect strict rules of impartiality and balance or to give equitable access of candidates.

By failing to differentiate between public and private media and applying the same content requirement to them the draft Code limits unnecessary media pluralism. As long as there are different media able to ensure a pluralism of opinions and views private media should be able to support different candidates.

ARTICLE 19 recommends that the Election Code differentiate between public and private media providing different content requirements for them.

Recommendation:
With respect to provision of election information and the requirement of impartiality, balanced reporting and equitable access of candidate to media, private and public media should be subject to different regimes of regulation for the purpose of ensuring media pluralism.


Overbroad and unclear requirement for balanced reporting
“Balanced” is probably one of the most frequently used words in the draft Code concerning the media.   Nevertheless, the draft Code does not explain the meaning of “balanced” and as a result the rules can be interpreted broadly opening the door for arbitrary restrictions on freedom of expression. This applies to “balanced reporting” especially.

Furthermore, the draft Code’s requirement for “balanced reporting” is problematic because it applies to all media. In contrast, Recommendation CM/Rec (2007) 15 requires that only broadcasting media report in a balanced way:

With due respect for the editorial independence of broadcasters, regulatory frameworks should … provide for the obligation to cover electoral campaigns in a fair, balanced and impartial manner in the overall programme services of broadcasters.

ARTICLE 19 points out that the election laws in Germany and France also specify that reporting rules apply to broadcasters only.  In line with Recommendation R (99) 15 which protect the editorial independence of newspapers and magazines, private print media have considerable freedom in their reporting of elections across Europe.  

Next, the requirement for balanced reporting set out in Article 196 of draft Code is overbroad because it includes coverage of comments made with respect to election events. This rule disproportionately restricts freedom of expression. In support of this position we point to Recommendation CM/Rec (2007) 15 which sets out a requirement for balancing reporting only with respect to “news and current affairs programmes, including discussion programmes such as interviews and debates”.  Media should be free to report about corruption, abuses of power and other issues of public interest without persons involved are candidates. Moreover, in line with the same Recommendation, private broadcast media services which are exclusively devoted to, and clearly identified as, the self-promotion of a political party or candidate should be excluded from the requirement of balancing reporting.  

Concerned that the overbroad requirement for balanced reporting may lead to arbitrary restrictions on expression and to muzzling of critical voices, ARTICLE 19 recommends that the Election Code provide a clear definition of balanced reporting of information and specify that the obligation for balance reporting applies to broadcasting media and to print media owned by public authorities. The obligation for balanced reporting should apply to private broadcasters only with respect to news and current affairs programmes.

Recommendations:
•    A clear definition of “balanced reporting” of information should be provided by the Election Code;
•    The obligation for balance reporting should apply to broadcasting media and to print media owned by public authorities only;
•    The obligation for balanced reporting should apply to private broadcasters only with respect to news and current affairs programmes.

Overbroad requirement for equal treatment to all candidates
ARTICLE 19 is concerned that all media are obliged to give equal treatment to all candidates and their nominators when reporting information about them.  It is not necessary to oblige all media to treat equally all candidates. Normally, election laws contain no rules for the print media because it has been recognised that market forces and the existing plurality of the print media can ensure fair representation of different views and coverage. As long as the print media are free and numerous, this situation is acceptable.

However, where print media are owned by the state or local authorities – as in Ukraine – it should be required to observe the principles of equal treatment to all candidates when reporting about them. The justification for this obligation comes from the public source of the funding of these newspapers. The regulation is also needed to prevent government papers from being biased during election campaign and supporting the incumbent authorities.

Recommendation:
Only broadcasting and print media owned by the state and local administration, should be obliged to give equal treatment to all candidates when reporting information about them.


Unnecessary restrictions on value judgment
ARTICLE 19 is concerned about the prohibition of broadcasters to publish editorial comments or narration or other value judgments, positive or negative alike, regarding the candidates and their nominators.  There is a risk that this provision could be used for media censorship. Moreover, it does not respect the editorial independence and restricts pluralistic expression. Recalling that Recommendation Rec (2007) 19 states that the regulatory frameworks should encourage pluralistic expression of opinion via the broadcast media and give due respect for the editorial independence, ARTICLE 19 recommends that the prohibition is removed.

Recommendation:
Article 197 para. 2 of the draft Code, prohibiting editorial comments or other value judgments regarding candidates, should be removed.


Unbalanced reporting of the activities of incumbent candidates

ARTICLE 19 is concerned about the very wide opportunities of incumbent candidates to be present in the media through the use of official releases about its their activities.

Article 199 para. 6 of the draft Code states that official release covering activities of incumbent candidates during election process shall not be deemed election campaigning. This provision provides opportunities to incumbent candidates to occupy media time by releasing numerous messages about their official activities. ARTICLE 19 points out that some laws are very strict in this regard to restrict any opportunity for abuse. For example, in the French community in Belgium, and in Malta government messages are suspended few months prior to the elections. Exceptions are made only in urgent matters.

We recommend that the Election Code suspend official messages few months prior to elections except in urgent matters.

Recommendation:
Reporting of messages of incumbent candidates should be suspended few months prior to elections except in urgent matters.


2.2.b. Rules Concerning Election Campaigns
Overview
Section XVI of the draft Code on election campaigning consists of 15 provisions relating to the form and methods of campaigning, election campaign financing, campaigning period, general restrictions on election campaigning, different types of campaigning such as public campaigning events, production and distribution of printed campaign materials, outdoor advertising, including campaigning in the transport sector, use of mass media both electronic and print, debates, and the right of reply.

Article 199 of the draft Code regulates the forms and methods of campaigning and defines political advertisement. Subliminal political advertisement and placement or distribution of campaign materials not labelled in accordance with the Code shall be prohibited. According to Article 199 para 5, advertising in any print media with use of names or images of candidates shall be deemed political advertising.

Article 202 of the draft Code sets out general restrictions on election campaigning. Article 202 para 1 of the draft Code prohibits distribution of “any matter calling for elimination of Ukraine’s independence, change of the constitutional order by violent means, violation of its sovereignty and territorial integrity, undermining its security, unlawful seizure of state power, advocacy of war, violence and incitement of interracial, national, religious hatred or infringing upon human rights and freedom or public health. Article 202 para 2 of the draft Code prohibits dissemination of information about a candidate or party electoral subject known or officially found to be inadequate or slanderous.

The draft Code set out a regime of election financing according to which candidates finance their campaigns from the election funds from the state budget to which they are entitled.  The draft Code is also aiming at setting restrictions on excessive spending by establishing a cap on the spending for individual election goods (badges, calendars, bags, etc) which should not exceed three percent of the minimum wage. Article 205 of the draft Code guarantees free distribution of election materials by candidates and political parties.

The draft Code obliges local executive authorities and bodies of local government to allocate space and install stands and billboards in public places for posting of printed campaign materials.  Article 205 of the draft Code establishes a right of candidate and political parties to distribute, without restrictions and charge, printed campaign materials and goods.

The draft Code determines that the airtime for election campaigning shall be from 19 until 23 hours Kyiv time.  Comments of the content of the election campaign broadcast or actions of the candidate are prohibited in any form within 20 minutes before and after the broadcast.  Continuous duration of the airtime granted to an electoral subject at the expense of his campaign fund may not be less than three minutes. The total airtime dedicated to election campaign on the radio or TV may not exceed 20 % of the actual volume of broadcasting.  Broadcasters are obliged to store the records of election campaigns and submit them to the National Broadcasting Council following a decision by the Central Election Commission.  

Article 211 of the draft Code sets out rules for the use of print media for election campaigning. Campaign materials shall be clearly differentiated from other materials and shall be published on the basis of an agreement between the candidate and the media and paid from the campaign fund. The Central Election Commission may request all information regarding the use of print space for the campaigning purposes.

Article 212 of the draft Code sets out rules for live broadcast debates. The debates shall be organised in a cycle of programmes of identical format in order to ensure that all candidates or political parties have an opportunity to participate. Rules for invitations of candidates and the format of the programming cycle are set out. Interactive voting is permitted.

Article 198 of the draft Code regulates the reporting of results of opinion polls. The results of the polls related to election may be published in the media. The draft Code lists number of mandatory information such as indication of the time of the poll, the geographical area covered, etc. which should accompany the publication of the results. The publication or distribution in any other manner of the result of the opinion polls is prohibited during the last ten days before the voting day. The draft Code provides rules for broadcasting results of an interactive audience polls during a live broadcast, prohibiting, among other things, participants of such broadcast to comment the results of such polls or refer to them otherwise.

Analysis

ARTICLE 19 welcomes the regime of election campaigning set up in Chapter XVI of the draft Code.  The regulation of election financing is also worth being praised because it is aiming at providing equal financial opportunities for each candidates and political parties.

The draft Code can be also commended for banning any distribution of free goods, funds and services for the purpose of election campaigning and keeping campaign activities out of the transport sector and historical sites as well as for restriction of calls inciting national and religious hatred and violations of the rights of others. The regimes of debates and election campaigning in the print and broadcasting media are in line with international standards

The following four issues concerning election campaigning are problematic from freedom of expression point of view.


Overbroad and unclear ban on inadequate or slanderous information
We find Article 202 para 2 of the drat Code, prohibiting dissemination of information about a candidate or party known or officially found to be inadequate or slanderous, to be vague, overbroad and unnecessary restricts freedom of expression. It is unclear which information would be considered “inadequate” because the draft Code does not provide a definition of such term. The provision places unnecessary burden on the media to monitor and refrain from dissemination of slanderous or inadequate information. In addition, the provision is overbroad because it does not take into account whether the media are able to prevent the dissemination of such information. Holding the media responsible for reporting slanderous information by others will lead to self-censorship with negative consequences for the public.

ARTICLE 19 recommends to remove this provision stipulate that individuals and the media can be hold responsible for slander under the general law provisions.

Recommendation:
Article 202 para 2 of the draft Code, providing for a special regime of liability for distribution of slanderous and inadequate information, should be removed.


Unlawful restrictions on the right to freedom of expression
It is problematic that the draft Code prohibits calls for elimination of national independence, which is a legitimate form of expression under international law. Other prohibitions such as prohibition of calls “undermining national security” are unclear and overbroad, and as such it poses risk of being used to restrict legitimate expression. ARTICLE 19 recommends that Article 202, paragraph 1 be revised whereby the restrictions on calls for national independence and undermining national security be removed.

Recommendation:
Article 202 para 1 should be revised whereby the restrictions on calls for national independence and undermining national security should be removed.


Overbroad and unnecessary restrictions on advertising
Article 199 para 5 of the draft Code, providing that advertising in any print media with use of names or images of candidates shall be deemed political advertising, is overbroad and unnecessary restriction on advertising.  The provision places the focus on the person behind the advertisement rather than on the intention of the advertisement. The approach is problematic because all advertisements concerning a candidate are regarded as political even those that are not related to the elections. For example, an advertisement for a new novel by a writer who is also candidate will be regarded as political advertisement although it is made for purely commercial purposes. As it is unnecessary to restrict the advertisement of such publications, we recommend that the provision be revised whereby only advertisements with political purposes shall be deemed political.

Furthermore, the draft Code does not differentiate between public and private media for the purposes of advertisement providing that advertisement in both public and private media is paid. This is in contrast with Recommendation CM/Rec (2007) 15 which sets out that public media shall carry messages of political parties and candidates free of charge.  ARTICLE 19 recommends that consideration be made for free advertisement in state/public media. This recommendation takes into account the public remit and funding of state/public broadcasters.

Recommendations:
•    Article 199 para 5 of the draft Code should be revised whereby only advertisements with political purposes shall be deemed political;
•    State/public media should carry messages of political parties and candidates free of charge.


Reporting of opinion polls
ARTICLE 19 observes that Article 198 of the draft Code, concerning reporting of opinion polls, is in compliance with Recommendation CM/Rec(2007) 15. The regulation of reporting of results of opinion polls is necessary to ensure correct information about candidates’ positions prior to the elections. Foreign election law contain provisions similar to Article 198.

However, the proposed provision is problematic for two reasons. Firstly, it provides a very long prohibition period for publication. Secondly, it unnecessarily bans participants in broadcasting programmes from commenting the results of interactive audience polls.

The ten-day prohibition period for publication of results of election polls before the voting day is unnecessary restriction on the right to impart and receive information. Recommendation No. R (99) 15 sets out that any restriction forbidding the publication/dissemination of opinion before the election should comply with Article 10 of the ECHR. It means that the prohibition period for publication of results should be proportionate to the specific need of ensuring respect of rights of others. Normally, similar restrictions in other countries last three – four days. In Bulgaria, a 14 day period of ‘pre-election poll silence’ was declared by the Constitutional Court as unconstitutional. The constitutional justices decided that this period violates the freedom to receive and distribute information. Therefore, the 10-day pre-election ban on publishing opinion polls is unusually long. Prohibiting the reporting of voting intention polls for such a long period would deny the audience meaningful information on the progress of the campaign.

Furthermore, the right to freedom of expression includes the right to make comments. It is not necessary in a democratic society to restrict comments on the results of interactive audience polls. Comments are personal opinions which are protected by international law without exceptions.

Recommendations:
•    The ten-day prohibition period for publication of results of election polls before voting day should be reduced to three days;
•    Article 198 should be revised whereby the prohibition on participants of interactive audience polls to comment on their results should be removed.


2.2.c. Measures to protection the media at election times

No protection against interference by public authorities and private businesses in the work of the media at election times
Noting that at election time the media are often subjected to unlawful pressure by public and private bodies and media, ARTICLE 19 observes that the draft Code does not provide for protection against such acts. The Appendix to Recommendation R (99) 15 provides for such protection stating that pubic authorities should refrain from interfering in the activities of journalists and other media personnel with a view to influencing the elections.

ARTICLE 19 recommends that the draft Code prohibit public authorities and private businesses from interfering in the activities of journalists and media outlets at election time. If other laws ensure such protection, the draft Code should include a reference to them.

Recommendation:
The Election Code should explicitly prohibit public authorities and private businesses from interfering in the activities of journalists and media outlets at election time. If other laws ensure such protection, the draft Code should include a reference to them.


No protection against attacks and intimidation on the media
ARTICLE 19 observes that the draft Code does not provide for special protection of journalists and their premises during elections or for legal responsibility of perpetrators of acts aiming at restricting media freedom. This omission is in conflict with international standards. We note that Recommendation CM/Rec(2007) 15 explicitly provides that public authorities should take appropriate steps for the effective protection of journalists and other media personnel and their premises, as this assumes a greater significance during elections.  Similarly, the Appendix to Recommendation No. R (99) 15 states that the problems of interference and attacks on the media at election time should be addressed by the state authorities, noting that this protection assumes a greater significance during elections.

Mindful that the state does not have only a negative obligation to refrain from interference but also positive obligation to protect journalists and media, we recommend that the draft Code establishes an obligation for state bodies to protect of journalists and media against attacks on them at election time. If other laws ensure such protection, the draft Code should include a reference to them.

Recommendation:
The Election Code should explicitly oblige state bodies to protect journalists and the media against attacks on them during elections or refer to laws which impose such an obligation.


2.3. Guarantees for the right of individuals and political parties to freedom of expression in election periods

The Right to Election Campaigning

Overview
Article 199 para 1 of the draft Code provides that all forms of campaigning are allowed as long as they do not contravene the Constitution and other laws.

Article 203 of the draft Code provides that only Ukrainian citizens entitled vote have a legal right to discuss freely and fully the qualities of election candidates belong. Foreigners and stateless persons are prohibited from supporting candidates by means of reporting news or participating in concerts, performances, sport competitions or other public events. Officials of national executive bodies, local government, law enforcement agencies and courts are also banned from participating in the election campaigns.

Article 209 para 3 of the draft Code prohibits on foreign media operating in the territory of Ukraine and mass media registered in Ukraine with a foreign interest exceeding fifty percent to be involved in election campaigning. The National Broadcasting Council is vested with powers to suspend foreign television channels whose activity is in breach of the prohibition to engage in election campaigning.

Analysis
ARTICLE 19 is concerned about the provisions of Article 203, excluding different groups of people from participation in the election campaigns. Foreigners and stateless persons are prohibited from supporting candidates by means of reporting news or participating in concerts, performances, sport competitions or other public events. Officials of national executive bodies, local government, law enforcement agencies and courts are also banned from participating in the election campaigns.

There are several problems with regard to these provisions. First, Article 203 is in conflict with international law. While the latter entitles everybody, regarding any distinction such as citizenship, nationality, sex, age, etc. to a right to freedom of expression including the right to discuss political matters , the draft Code grants this right to Ukrainian voters only. Foreigners and people who are not voters (teenagers and persons deprived of voting rights such as people lacking legal capacity cannot share their opinion on issues concerning election candidates. Apart from being in conflict with international law, this provision is also illogical because having an opinion about political matters including election candidates is a normal aspect of public life today.

Likewise, the provision depriving foreigners of the right to foreigners support candidates makes no sense. Supporting a candidate is a matter of choice which does not depend on voting rights. For example, many foreigners supported Obama during the latest presidential elections in the USA.

Next, the restriction of officials of national bodies to participate in election campaigns is overbroad. Even though it is justifiable to restrict these persons from using their public or official capacity to support political candidates, election laws around the world distinguish between public and private life of these persons and allow them to participate in election campaigns in their private capacity.

Finally, the ban on foreign media outlets registered in Ukraine to participate in election campaigning is not necessary in a democratic society. Foreign ownership of media is widely spread in today globalised world. Foreign ownership of media is not a justification for special regimes for regulation. The election-related rules for media should apply to media owned by foreign companies or individuals. Other treatment will amount to discrimination.

Recommendations:
•    Article 203 para 1 of the draft Code should be revised to allow everybody as opposed to Ukrainian voters only to enjoy the right to discuss freely and fully political, business and personal qualities of candidates, election agendas and activities of candidates;
•    Article 203 para 2, 1) of the draft Code should be revised whereby the prohibition on foreigners and stateless people to participate in concerts, performances, sport competitions, and other public events held in support of candidates should removed;
•    Article 203 para 2, 2) of the draft Code should be revised to allow officials of national executive bodies to participate in election campaign in their private capacity. These persons should be prohibited only to use their official capacity to support political candidates;
•    Article 208 para 3 of the draft Code banning foreign media registered in Ukraine from participating in election campaign should be removed.  


Failure to protect the right to participation in election campaigns
ARTICLE 19 is concerned that the drafters of the Election Code did to recognise that participation of voters in election campaigns is a form of their right to freedom of expression, and for this reason the draft Code did not provide the required level of legal protection. More specifically, the draft Code does not require that any interference with the right to election campaigning should comply with the three-part test set out by Article 10 para 2 of the ECHR. As noted above, any interference should: 1) be set out by law; 2) pursue a legitimate; and 3) be necessary in a democratic society. In conflict with international law, the draft Code makes it possible to restrict the right to election campaigning on formal basis specified in the law without requiring any assessment of whether the restriction pursues a legitimate aim and is necessary in a democratic society.

ARTICLE 19 therefore recommends that the draft Code include a provision which requires that all restrictions of the right to election campaigning are based on law, pursue a legitimate interest and are necessary in a democratic society.


Recommendation:
The Election Code should strengthen the protection of the right to participate in election campaigns by including a provision which requires that all restrictions of this right must be based on law, pursue a legitimate interest and must be necessary in a democratic society.


No right of candidates to access to state/public media
ARTICLE 19 observes that the draft Code does not entitle political parties and candidates with specific legal rights such as a right of access to state/publicly owned media during election campaign.

We note that usually, individuals are entitled with specific legal rights which serve as means for them to exercise their right to freedom of expression. While none of the international tribunals has directly examined the positive obligation of a government during a campaign period to broadcast views of political candidates on government-controlled channels, international norms discernible from a range of state practice confirm that this obligation is indeed widely-recognized. Several national courts have concluded that political parties are entitled to have access to broadcasting time as an essential aspect of the right to freedom of political communication, in light of the tremendous impact of radio and television on public opinion and the public service nature of government-owned media.

Therefore, ARTICLE 19 recommends that the Election Code recognise a right of political parties and candidates of access to state/public media.

Recommendation:
The Election Code should recognise a right of political parties and candidates of access to state/public media.


No protection against attacks, intimidation or other types of unlawful pressure
ARTICLE 19 observes that the draft Code does not provide for protection against attacks aiming to suppress free speech during elections. The mere mentioning in Article 202 that “persons interfering with the right to election campaigning shall be liable under the laws of Ukraine” is too vague to be regarded as a safeguard. While other legal acts such as the Criminal Code may provide for such protection it is recommendable to include a provision in the draft Code referring to the specific legislation defining legal responsibility for perpetrators of acts aiming at restriction of free expression during elections.

Recommendation:
The Election Code should protect the right to freedom of expression by including a separate provision referring to the specific legislation defining legal responsibility for perpetrators of acts aiming at restriction of free expression during elections.


The Right of Reply

Overview

Article 213 of the draft Code establishes a right to reply. This right belongs to candidates or political parties. The latter can exercise the right if they think that the information distributed by the media is “inadequate”. The media has an obligation to publish or to broadcast a rebuttal. The draft code sets up a three-day time period for publication or broadcasting of the reply, pointing out that it should not be later that one day before the voting day.

More requirements are set out for the format of the reply. In this case the reply should be granted on the same time of the day and the duration of the airtime provided for the reply may exceed twice the duration of the rebutted message. In cases of print media, the reply should be published in the press in the same font face and in the same page. The size of a printed reply may exceed that of the message so rebutted by more than 50 percent. The reply must have references to the information deemed “inadequate” and should not contain election related appeals. Where a reply concerns information published in the last regular issue of the printed edition before the voting day, the publisher is obliged to reply in an extraordinary issue of the same circulation. The cost of publication of a reply shall be on the media outlet.

Analysis

ARTICLE 19 welcomes the legal recognition of a right to reply. The media have a duty to offer a right of reply to statements that are inaccurate or offensive, and they must be able to exercise this right of reply during the campaign period.  As a matter of fact, this obligation is particularly important during the election campaign as all views should be put across and reported correctly to the voters in order to allow them to make an informed choice. In this connection Recommendation CM/Rec(2007) 15 states ‘particular attention should be paid to certain specific features of the coverage of election campaigns such as . . . the right to reply. “…without undue delay.”  

At the same time, ARTICLE 19 is concerned that the wording of Article 213 is vague and places a heavy burden on the media. The provision is vague because the draft Code does not include a definition of “inadequate” information. Besides the adopted regime is not in compliance with Principle 1 of Recommendation Rec (2004) 16 according to which a right to reply applies to “inaccurate” facts.  We recommend this standard to be followed as it is clearer and reduces the situations in which the media have a duty to allow the reply.

Furthermore, the specific length of replies is not in compliance with Recommendation Rec(2004) 15, which provides for an “equivalent” remedy. The equivalence of the remedy depends always on the contested information and the new information necessary for its correction. ARTICLE 19 is concerned that the approach adopted in the draft Code will make it possible abuse the spirit of the right to reply by taking more time and space than it is necessary to correct the contested information.

The draft Code could be praised for providing for a prompt publication or broadcasting of replies. However, the mechanism for replies in the eve of an election puts excessive burden on the media. The obligation of publishers to reply in an extraordinary issue of the same circulation where a reply concerns information published in the last regular issue of the printed edition before the voting day amounts to interference with their freedom of expression. The interference is disproportionate in view of the fact that the publication of an extraordinary issue is expensive. The inaccurate information can be corrected in a cheaper way, i.e. without disproportionately interfering with the right to freedom of expression. By way of example we point to Lithuania, where in cases where a weekly publishes inaccurate information in its last issue before the elections, the weekly has to pay for the reply in another outlet prior to the voting day.

It is also problematic that the draft Code does not provide for exceptions of the right to reply. In fact it seems that the media can never refuse to publish or broadcast a reply. We point that Recommendation Rec (2004) 15 lists a number of exceptions of the right to reply. This right can be refused by the media:

•    if the length of the reply exceeds what is necessary to correct the contested information;
•    if the reply is not limited to a correction of the facts challenges;
•    if its publication would involve a punishable act, would render the content provider liable to civil proceedings or would transgress standards of public decency;
•    if it is considered contrary to the legally protected interests of a third party;
•    if the individual concerned cannot show the existence of a legitimate interest;
•    if the reply is in a language different from that in which the contested information was made public;
•    if the contested information is a part of a truthful report on public sessions of the public authorities or the courts.

Finally, we recommend that the Election Code include a mechanism for dispute settlement if a media outlet refuses to rectify or grant the right of reply. In this respect Recommendation Re (99) 15 states that states should choose the mechanism to address complaints with respect to the right to reply. In some occasions this may be a summary court proceeding, whilst at other times it may be the press or broadcasting self-regulatory body (for example, in Norway such a body is the Press Complaints Commission) or even an electoral commission which are entrusted with powers to resolve cases involving the granting of the right to a rapid reply.


Recommendations:
•    The right to reply should be guaranteed in cases of inaccurate facts as opposed to inadequate information.
•    The specific length of replies should be replaced by providing for “equivalent replies”
•    Replies to inaccurate information appeared in the publication’s last issue before the election should not be published in an extraordinary issue but in another outlet before the voting day.
•    The Election Code should provide for exceptions of the right to reply in accordance with Recommendation Rec (2004) 15.
•    The Election Code should establish a dispute settlement mechanism in cases when the media refuses to publish a reply.


2.4. Enforcement of the draft Code

Problematic oversight and enforcement mechanism

Overview

The enforcement of Chapter V is ensured by few provisions. Article 202 para 7 of the draft Code sets out that interference with the right to election campaigning as well as violations of the procedure of such campaigning shall be punished under the laws of Ukraine.

According to Article 202 para 8 the Central Election Commission and other election oversight bodies are obliged to forward complaints of offenses or administrative violations to the “relevant law enforcement agencies”.

Article 209 para 5 vests the National Broadcasting Council with powers to suspend foreign television channels whose activity is in breach of the prohibition to engage in election campaigning. It can also suspend broadcasts calling for termination of Ukraine’s independence, or violent change of its constitutional order, infringement of its sovereignty and territorial integrity, undermining its security, unlawful seizure of power, propaganda of war and violence, or inciting interethnic, racial, religious strife, or encroachment on human rights and freedoms or public health.

Article 209 para 6 vests courts with powers to adjudicate electoral disputes concerning the media. If a violation of the Code is found, the Broadcasting Council has powers to issue an official warning. The media outlet so warned shall be under the obligation to publish a notice thereof without a comment in a news programme or publish it on the front page. Where a court finds a repeated or a single gross violation of the Code by a media outlet the court shall order suspension of release of the relevant broadcast or revocation of the licence or issue an injunction on the release of the printed edition.

Analysis

One of the weaknesses of the draft Code concerns the problematic oversight mechanism with respect to interferences with the rights to freedom of expression and information. The wording of Article 202 para 7 of the draft Code, establishing that liability for interference with the right to election campaigning is very scarce. The provision does not define the form of liability and the bodies responsible to take action. Instead, it simply refers to relevant legislation of Ukraine without even specifying the laws regulating interferences with the right to election campaigning.

The wording of Article 209 para 6 of the draft Code implies that electoral disputes concerning the media are examined by courts whereas the Broadcasting Council issues on the basis of the court decisions warnings.  The regime is problematic for two reasons: 1) it does not contain guarantees for prompt adjudication of the disputes; 2) it is bureaucratic because it requires participation of the court and the broadcasting council, and 3) it applies for violations of broadcasters. The procedure for print media is unclear. The Joint Statement on the Media and Elections mandates states that the oversight of any rules relating to the media and elections should be vested in an independent administrative body which should address any complaints promptly.  Furthermore it requires that decisions of this body be subject to judicial review.

Furthermore, it is problematic that the draft Code does not regulate the monitoring of media coverage of elections. It provides that the National Broadcasting Council suspends broadcasting in violation of the law without vesting this or any other body with powers to conduct monitoring. We are concerned that the lack of specialised monitoring opens the door for arbitrary conclusions about unbalanced reporting which can lead to sanctions for the media. ARTICLE 19 Guidelines state that election broadcasts should be monitored and regulated by an independent, impartial body.  The body should allocate time for direct access programmes and should have the power to hear and take binding action on complaints concerning broadcast-related violations by the media, political parties or candidates, including by ordering a correction or reply.  It should render complaints decisions promptly.  We point out that most broadcast regulators in Europe have been granted competences related to monitoring of broadcast media coverage of elections. For example, broadcast regulators act as consultants in the framing of election advertisement regulations, supervise the allocation of free advertisement, react to complaints from parties and candidates regarding the provision of access and to complaints from everyone regarding infringements of the election law and supervise the right to reply.

Finally, the sanctions which the court can impose for repeated or a single gross violation of the Code are very harsh. The obligation of the State to protect the right to freedom of expression requires that a careful selection of the sanctions with respect to the media whereby the least intrusive sanctions should be always preferred. This means that suspension or revocation of licence or injunction on the release of a printed edition should be imposed only if no other sanction has stopped or remedied the violation. Normally even gross violations can be sanctioned with fines which are less intrusive than the sanctions set out in Article 209, paragraph 7. Besides the draft Code does not specify what gross violation is. We recommend that the harsh sanctions in Article 209, paragraph 7 be replaced with fines.

Recommendations:
•    The enforcement regime of Chapter V should be strengthen by
o    vesting powers to an independent body to oversee the rules relating to the media in election times;
o    ensuring that this body can address complaints promptly;
o    guaranteeing a right to judicial review of the decisions of the oversight body;
o    vesting powers to broadcast regulator to monitor different aspects of broadcast media coverage of elections.
•    The harsh sanctions in Article 209, paragraph 7 should be replaced with fines;
•    The Election Code should specify what amounts to gross violation of its norms.


No protection for the media in cases of unlawful statements by others in direct broadcasts

Outline

Article 209 of the draft Code exempts the media for responsibility for the contents of election campaign materials placed under agreement. Where a person participating in a live broadcast attempts at distributing any restricted information, the host of the programme is under the obligation to stop such distribution.

Analysis

ARTICLE 19 is concerned that the draft Code does not contain a provision exempting the media from legal responsibility for unlawful statements made by political candidates in direct broadcasts. Without such a protection the media can be easily harassed with fictitious lawsuits for defamation. This departure from the normal rules of liability is justified by the short duration of campaign periods and the fundamental importance to free and fair elections of unfettered political debate. This limitation of liability does not, however, relieve political parties and other speakers themselves from liability for their statements.

With regard to the question of liability, the ARTICLE 19 Guidelines for Election Broadcasting in Transitional Democracy recommend that media who merely republish messages made by others should enjoy protection:

It is strongly recommended that the media be exempted from legal liability for unlawful statements made by candidates or party representatives and broadcast during the course of election campaigns, other than those which constitute clear and direct incitement to violence. The parties and speakers should be held solely responsible for any unlawful statements they make.  

Recommendation:
The Election Code should exempt the media from legal responsibility for unlawful statements made by political candidates in direct broadcasts, unless the media outlet concerned has either taken specific steps to adopt the statements, or where the statements are clearly illegal and the media outlet had an adequate opportunity to prevent their being disseminated.

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