Political Advertising and Media Campaign During the Pre-election Period: A Comparative Study Commissioned by the OSCE Mission to Montenegro May/July 2017

The present Comparative Study provides for a results of the work performed and the relevant findings within the project "Political advertising and media campaign during the pre-election period", commissioned by the OSCE Mission to Montenegro, under the project number 2700395. As required in the Terms of Reference, this Study represents a part of the project "Support to Media Institutions, Information Pluralism, Freedom of Media and Safety of Journalists in Montenegro".

The aim of the Comparative Study is to assist the Agency for Electronic Media in improving the legal framework by producing a comparative analysis of the legal frameworks in seven OSCE and Western Balkan region countries related to the political advertising and media campaign during the preelection period. The final objective of the project is to improve the quality of the media legal framework regulating political advertising. The main project components are summed up below.

Brief description of the service: Reviewing legal framework and prepare comparative analysis of the legal frameworks in seven OSCE and Western Balkan region countries relate to the political advertising and media campaign during the pre-election period. Produce recommendations for legal amendments needed in regards political advertising.

Objective: Improve the quality of media legal framework regulating political advertising.

Tasks and responsibilities:  Comparative analysis of the legal frameworks in seven OSCE and Western Balkan region countries relate to the political advertising and media campaign (before and) during the preelection period;  Best practices as regards the balance between regulation and self-regulation of political advertising;  Roles and responsibilities of different stakeholders: media, political parties, media regulatory and self-regulatory bodies, PBS and their supervisory bodies, election commission, anticorruption agency, parliament, etc.;  Best practice to ensure efficient enforcement of the rules (monitoring, supervision, prevention and sanctioning);  Best practice to ensure sufficient complaint procedure related to media coverage of the election and political advertising;  Protection of minors (children) within political advertising (use of children in media materials, on line political advertising and protection of minors) Deliverables:  Drafting of the final report, of at least 30 pages, with clear recommendations needed for enforcement of media standards and improvement of media legal framework  Present the report at the event to be held in Podgorica

2 INTRODUCTION

Free and fair elections are one of the basic foundations of democratic societies. It is a fact that the media play an important role in the modern society as a platform for the dissemination of information. This role acquires a special dimension at the time of elections given the fact that, by carrying out their activities in a professional, fair and balanced manner, the media substantially – if not even decisively - contribute to creating an enabling environment for free and democratic elections, based on the well-informed electorate’s decisions. However, the political advertising and, especially, the exercise of media campaigns during the preelection period are among the issues that, regardless of their important role in informing (or influencing) the electorate, have escaped precise, unambiguous and legally binding stipulations. Despite that, it could be said that allowing the candidates’ access to the media, together with creating conditions to provide for a balanced, impartial and fair coverage of an election, in order to provide the electorate quantum of information needed for an informed decision, represents one of the main pillars of the modern democracy. The lack of explicit definitions resulted primarily from the great diversity of national political and culture traditions, different approaches to regulation and selfregulation in a direct relation to the development and specifics of the media landscape and civil society sector in each respective country. Any attempt at a comparative analysis that includes references to political advertising and regulation and self-regulation of the media during the election process should take into thorough consideration these diversities, duly avoiding any attempt to classify them in a qualitative way by using one single, universal criterion. Different level of restrictions on the political advertising does not reflect the restrictions in exercising the vital political communication at the time of elections or in general.

Quite the contrary: some of the most developed democracies and exemplary open societies (Sweden, Norway or France, for example) have different levels of restrictions of political advertising, including even the total ban of it. Some countries are allowing political advertising only during the pre-election period, considering the dissemination of the message as critically important for an informed decision by voters, while some other countries (Denmark, for example) do not allow advertisements with political messages to be broadcast during the election campaigns, where a total ban is considered necessary to protect voters from "inappropriate influencing" and to ensure "equal democratic rights of candidates" regardless of the economic means or funding. The most often justification for the latter is that well-established parties with a more generous campaign funding would be able to afford significantly more advertising time than new or minority parties – thus amounting to a possible discriminatory practice. However, the same rules do not (necessarily) apply to all the media: print and radio have usually a more relaxed regulation when it comes to the political advertising. Another argument against paid advertising is that it increases the “dumbing down” of political debate. It is clear that paid political commercials are generally much shorter in length than free direct access slots and generally tend to sell a candidate or party (or denigrate the opponent) rather than developing an argument. The difference in length is striking: average length of paid advertising slots in Finland is 10-25 seconds and in the United States 30-60 seconds. In France, the United Kingdom and Denmark the length of free slots ranges from five to 10 minutes. Adding to the pool of diversities different categories of the political promotion (paid political advertising, free of charge air time), one could conclude that a comparative analysis of the rules and regulations on the political advertising could be only a compendium of different solutions deriving from different political traditions and media landscapes, with the common denominators reduced only to some marginal aspects of the analysis. Not so. Taking into consideration the importance of a free and fair access to the media for the plurality of political options, equality and fairness are not to be taken for granted even in the "traditional" and "mature" democracies. For example, political opponents to former Italian Prime Minister Silvio Berlusconi complained, probably rightfully, that the Prime Minister used his cross-sectoral media portfolio for an undue influence on the electorate. This is yet another example to prove that a sophisticated legal and regulatory system, based on the constitutional and normative principles that ensure elections are played out in the media and public space in general according to certain criteria, should be maintained and constantly upgraded, nowadays primarily in order to meet the challenges of the new communication/dissemination platforms and profoundly changed patterns of consuming the media content. Not all of them (patterns) are contributing to the ideal of the "well-informed" citizens; even a superficial notion of neologisms such as "fake news" or "alternative facts" opens some brand new aspects to the issue the fairness of the elections-media relations, even in the most elaborated democracies. Being aware of these new challenges, political advertising and media campaigning during the preelection period remain among issues that have a desirable regulatory framework, especially for "new" democracies and societies emerging from the transition, in order to help and support democratic solutions, institutions and procedures to become "organic" and, in basic terms, irreversible. Different experiences derived from different traditions, but deeply rooted into the democratic fabric of societies that have experienced dozens of undisputed elections and changes of governments and political options, should not be considered a "double standard" policy in this regard, but rather a plurality of solutions. In this regard, political advertising and media campaign during the pre-election period are not the only examples of different (although, as mentioned, not "double") standards and solutions applied to countries with different democratic traditions. The issue of defamation could be presented as another example. Considering the negative impact of the imposition of criminal sanctions in defamation cases on the media and on the freedom of expression in general, especially in transitional and emerging democracies, the European-based and international human rights and media watch-dog organisations are strongly advocating decriminalisation of defamation. Still, criminal defamation laws continue to be applied in, for example, France, Italy, Greece, Portugal, having resulted in occasional convictions of journalists, even in the states typically considered as strong defenders of the media freedom such as Denmark, Germany and Switzerland. Among the countries in which defamation remains a criminal offence, nearly all foresee the possibility of imprisonment. At the level of pure facts, one could say that the countries that strongly advocate media freedom and free speech issues feature by themselves the legal provisions with a potential to limit it, while being active in the emerging democracies in promoting standards that are sometimes opposite to their own legal practice. The answer the dilemma which seemingly opens an issue of the (lack of) consistency is: media systems and their subsequent relations to the democratic process must be understood within the historical conditions within which certain notions of the media freedom and autonomy have developed. As mentioned, while understanding the diversities resulted from a genuine democratic development and differences in political systems, traditions, media landscapes and other, for the subject of this analysis, the defining elements, the key international institutions (or for that matter, watch dog organisations) have adopted a different approach to the "new", emerging democracies and/or transitional societies. The lack of the genuine, organic and time-tested solutions, in many aspects important (or even vital) to the functional democracy, and the concerns about preventing any eventual hijacking of the fragile democracies by the authoritarian residues have resulted in an attempt to identify a set of the "good governance" criteria, even if they do not have a common base in the "old" democracies. Taking this notion into consideration, defining a set of recommendations in the field of establishing and consolidating the effective democratic election standards and procedures is of the utmost importance, as well as identifying the country specifics (if they exist) that should be respected. There is no media system that does not have weaknesses. Some new challenges are common both, to the "old", and the "new" democracies, such as, for example, the need for redefining the traditional standards (the "day of reflection" or the "election silence", for example) in a communication environment ever more populated by social media platforms. These challenges, however important they could be, go beyond the scope of this report.

3 DEFINITION OF TERMS

For the purpose of this analysis, political advertising will refer to paid political advertising while the term free airtime will be used for free political advertising, such as party political broadcasts, for example. Definition: Political advertising is advertising whose central focus is the marketing of ideas, attitudes, and concerns about public issues, including political concepts and political candidates. The essential task of political advertising is to gain the confidence of the people for their acceptance of ideas and, in the case of political campaign advertising, to influence their vote. Political advertising differs from commercial advertising in that the product is either a person or a set of values rather than goods and services. In addition, the advertising objectives must be met within a specific time frame. Political advertising carries a clear moral implication, because the results have potentially farreaching effects on the population at large.

3.1 Elections In principle, all political elections taking place in countries encompassed by this Study are included under the term "elections", that is, presidential, legislative, regional and local elections, as well as the political referenda. However, certain provisions will not be directly applicable to all of these elections since, for example, some of the principles – primarily for the reasons of practicality - could be difficult to implement at the level of local elections.

3.2 Paid political advertising In a sharp contrast to the commercial advertising, which has been strictly regulated and harmonised within the EU Member States' jurisdiction1 (which is also a requirement for the EU accession candidate/potential candidate countries), political advertising appears in different regulation formats. In some European countries, paid political advertising is a legal and unrestricted form of political communication, while, in others, political advertising is either allowed only during the preelection period or prohibited as such. In countries where political advertising is permitted, the same criteria must be applied to the allocation of the air time for paid political advertising as for free political advertising, based either on the principles of equality or proportionality. Candidates and/or political parties should be given a fair and non-discriminatory treatment in terms of the access, timeslots and the rates/pricing policies. In some countries, the broadcaster has the possibility to preview the spot and reject it in limited cases (e.g. criminal offence, hate speech, defamation), subject to the national regulatory authority or to the court scrutiny. This is the case, for example, in Germany, where the competence to decide upon the unconstitutionality of a party's messages lies with the Federal Constitutional Court. Most of the countries which allow paid political advertising also foresee certain legal restrictions to avoid the discriminatory character of the practice. The European Platform of Regulatory Authorities (EPRA) mentioned the following restrictions in this regard: limits on the duration and frequency of airing paid political advertising, limits related to the scheduling (a paid political advertisement is not allowed during news, religious, sport, culture, entertainment or children programmes, for example), limits on the charges for such ads (the price lists must be submitted to the regulator for review usually 15 or 30 days prior to the elections period), or on the maximum election expenditure that is permitted by the law (Greece and Latvia, for example). The regulation of the election campaigns defines a specific labelling/identification requirements (paid political advertising should be properly and visibly labelled, from the commencement to the end of the programme, as "paid political advertising", by visual and audio "separations" from the regular programme). The broadcasters are obliged to provide all parties with equal conditions and equal access to political advertising (the price per second for paid political advertising should not exceed the average advertising price), an equitable access to the same programme period etc.). The Law on general elections in the Republic of Kosovo stipulates, for example, that the price per second charged for paid political advertising spots shall be "no higher than the lowest rate charged for that time and day of the week in the past six (6) months" (Article 49.14). The Election law in the former Yugoslav Republic of Macedonia stipulates that "the price per second for paid political advertising should not exceed the average 1 Audiovisual Media Services Directive 2010/13/EU) advertising price, as calculated in the 3 months preceding the day of calling elections" (Article 75.7), while the Election Law in Bosnia Herzegovina (Article 16.5) says that "Advertisements shall be paid in advance and the prices (...) must not be higher than the prices in the existing marketing price-list of the given media". Most of the countries that allow the paid political advertisement (including all WB countries) also impose specific restrictions concerning the total amount of paid political advertising. In some countries (for the purposes of this Study, in the former Yugoslav Republic of Macedonia, for example2 ) the public service media are not allowed to broadcast paid political advertising - only private, commercial broadcasters may do so. Article 49.12 of the Kosovo Election law allows the private broadcasters the right to choose not to air paid political advertising time for any certified political entity. In that case, private broadcasters are not required to offer the minimum free airtime as specified for the broadcasters who are accepting paid political advertising. However, there are a number of countries with no restrictions on the paid political advertisement