Post-Soviet Media Law & Policy Newsletter

Media Law and the December Election

The Basic Framework of the Law on Elections and the Media

In this pre-election issue, our goal is to provide an instant roadmap for the new regulations on candidate and electoral bloc access to the media. The rules are complicated: we’ve published the relevant new law, in full text, as an appendix and most of our commentary is dedicated to its interpretation.

On September 21, President Yeltsin approved regulations on the election of deputies to the State Duma. Article 28 of that statute governs election campaigning through the mass media. It has several components: a ban on the publication of the results of public opinion polls within 10 days of the election; a requirement that mass media founded by public institutions and subsidized mass media must provide equal opportunities for candidates for the Duma; and the right of each candidate to one appearance on state television and one on state radio. Article 28 also requires the Central Electoral Commission to ensure that air time is provided on state radio and television on an “equal footing.” Finally, Ostankino and Russian Television and Radio are both required, in the three weeks prior to December 12, to set aside at least one hour on workdays of free time to be provided to qualified electoral blocs under “equal conditions.”

On October 29, the President approved the Regulations on Information Guarantees in the Election Campaign developed by the Central Elections Commission (which are attached to this newsletter). These regulations have a number of stated or implicit goals: to provide some sort of basic equity in access to radio and television among the qualified parties, to limit the cost of television and radio as an element in political campaigning, to minimize bias by the state-owned or managed broadcasting systems, to reduce the impact of differences in wealth among competing blocs by limiting the amount of television and radio that any bloc can use.

The key feature, section 3, guarantees a segment of time—which we’ll call “access time”—to be provided each day, free of charge, in the three weeks prior to the election for access by the political blocs and candidates. The various blocs and candidates have made application for this time and Ostankino and Russian Television and Radio will have prepared a schedule, allocating time equally among these groups, for the period prior to the election. Undoubtedly, a number of questions will arise concerning the use of this time. Bias can be shown by having one bloc’s time too early and another’s too late, and mechanisms have been considered to avoid this problem. In addition, the blocs themselves may struggle to control how this access time is used, but the television and radio companies are seeking to assure some consistency or uniformity in format.

But on this foundation of equity in “access time,” there lies another layer of regulation (sections 3 to 7) designed to permit blocs or candidates to acquire time for a fee. The right to purchase time on the state networks only extends from the date of approved registration until November 20, and it appeared—as of November 12 when we went to press, that the opportunity might largely go begging because of the late registrations. The regulations (section 5) have very specific restrictions in terms of how many minutes for political advertising and how many for speeches and how many for political debates and round tables terms defined in section 2). And there are, as well, regulations on how much can be charged (sections 3, 6 and 8). Here we call this time “purchased time” to distinguish it from the guaranteed base of “access time.”

Third, the Regulations seek to establish standards governing both the conduct of the campaign by the political actors and the campaign coverage by journalists and television and radio companies. These include rules concerning fair political practices—truth, negativity in political content; and rules to limit bias and the appearance of bias in journalists (who can be a moderator, the fair announcement of times of political broadcasts), the conduct of political debates and the requirements of political advertising. Certain of these rules apply, in various ways, not only to the access time and purchased time, but also to the regular news coverage of television and radio companies.

Finally, one of the most interesting and useful elements of the new rules has to do with a constant problem in setting rules for political campaigns: determining speedy identification of problems and enforcement of rules. Under the regulations (sections 26-41), there is a special, quite unusual tribunal that is established to hear complaints and issue expert opinions. This tribunal is to serve as a kind of conscience of the citizenry in ensuring as fair, unbiased and open a discourse of political issues as is possible.

Of course—and this is beyond the scope of this analysis—the regulations concerning the media can only be fully understood in the context of the means of campaign financing (including limits on contributions), the difficulty of registering parties, the advantages of incumbency, and all of the other surrounding machinery of a campaign.

It’s also interesting to make some crude comparison of the Russian system to the American: in American elections, no foundational allocation of free broadcast time is mandated; no limit exists on the amount of time that any entity can acquire; no absolute requirement exists that any media sell any time at all; there are hardly any specific substantive regulation of content; and finally there is no special election mediation tribunal.

Lots of issues still seem murky: these include what obligations apply only to state radio an television (the bulk of the law), which to so-called “independent broadcasters” and which to the printed press. The inclusive term for all of these is “the mass media” and some parts of the regulations apply across the board. Already, the Information Tribunal has expressed concern that regulations on political advertising should apply to the printed press as well as television.

Free Access: The Next Three Weeks

For the three weeks before the election, starting November 21, state radio and television must provide access time for candidates and electoral blocs; no time can be sold and there is no time set aside on election day. The two federal channels, Ostankino and Russian Television and Radio, will each provide one hour each weekday evening (repeated the next morning) free of charge. The format each day will be predominantly debate-like in nature (there was a question whether the channels control the formats or the parties do; the question seems to have been resolved in favor of standard format and control). The word “voter” will probably be included in the title of the program to demonstrate that the object is to involve the citizen, not to benefit the blocs or candidates. Thus there will be at least thirty hours (one hour a day for fifteen days on each of Ostankino and Rossiya) and the division of these thirty hours, done partly or largely by lot, will conform with the access time obligation.

According to a November 5, 1993 news conference of Valentin Lazutkin, deputy chair of Ostankino, a goal is to have the access time sufficiently exciting so that large numbers of viewers will watch these programs, and with unflagging interest. Ostankino and Rossiya television are experimenting with making the format more interesting, including providing elements of chance, perhaps a game that relates to the choice of questions put by the moderator. For example, according to Lazutkin, “any politician . . . should be ready for anything unexpected,” so the program may have a sort of lottery with candidates drawing questions and answering them within a certain time limit. On the other hand, the program should not be pure showbiz: every participant should have at least 20 minutes to present his or her views. As to the moderators of these access programs or debates, Lazutkin said that they will be almost “like human robots” not winking with their right eye or left eye, but practicing professionalism. The emphasis will be on using television anchors because of their experience.

Purchasing Time: Of Ads and Fees

The Russian scheme prizes equitable access, but it is designed to combine that with rough-and-ready American style, money on the barrel-head, politics. In addition to the “access time” there is the kind of time that electoral parties or candidates can purchase (through the entire election period on “independent” broadcasters, though only until November 20 as far as state television and radio are concerned). Nikolai Ryabov, the chair of the Central Election Commission, clarifying the rules, said at a press conference: “These are the rules of the game: whoever has money can buy air time.” Ostankino set aside 30 minutes, from the end of the main evening news program, for this purchased programming.

Section 5 of the regulations provides the rules for the early campaign period: each candidate or bloc could have purchased up to two minutes of political advertising on state radio and television during each 24 hours and up to 70 minutes each week for political speeches, press conferences and interviews. About six hours could have been purchased for political debates, though it is not clear whether per week or for the entire campaign.

Political ads are, for the first time, specifically permitted. Can the electoral blocs or candidates use negative ads? The rules have intriguing sections that deal with the content of campaigning material and these rules are discussed below. Of these, only section 25 applies to political advertisements. This section prohibits the distribution of false material that is contemptuous and derogatory. The principal regulation (section 16) of political advertisements has to do with identifiability: there is an obligation to indicate which candidate or bloc is favored by the ad and who has liability relating to the making of the advertisement.

One question is whether political advertisements can be sold for placement throughout the broadcast day (during the news, as a most controversial example), or can only be sold for transmission during a political broadcast time period. There seems to be no constraint on the day part in which campaign ads can be broadcast, but the television companies seem inclined to restrict ads to the same time as other political material.

With the important exception of air time for political advertisements, the regulations prohibit the imposition of fees higher than actual cost for the provision of air time (section 6) and the distribution of all forms of political campaign uses (section 8). It may be expected that questions will arise as to the scope of “actual cost.” For example, does it include overhead or just marginal cost? It should be noted that both Sec. 6 and 8 place the burden of proof on this issue on the broadcasters and distributors, not the candidates.

The regulations (section 8(6)) provide for reimbursement from the federal budget to independent broadcasters for the difference between actual cost and market prices. This contrasts with U.S. law which requires broadcasters to charge for political advertising at no more than the “lowest unit price” (see 47 U.S.C. 315 (b)) but does not provide any subsidy for the difference between regulated and market prices. In the United States, this is presumably not a taking because the broadcasters are regulated. An interesting question is whether Russian law could do the same thing with print media.

While section 8(6) is in that part of the regulations dealing with signal distribution, it apparently applies to the provision of air time, since the Russian Federation Ministry of Communications has a legal monopoly on broadcast signal distribution. As a safeguard against misuse of this monopoly, the regulations (section 8(4)) authorize the Russian Federation Council of Ministers to impose caps on the fees charged for distribution of all forms of broadcast campaign uses up to December 12.

An emerging issue is whether the Ministry of Communications should be prohibited from discriminating in the context of political campaign uses against independent broadcasters, who ordinarily are charged much higher signal distribution rates than are state television and radio companies. The Information Arbitration Tribunal (discussed below) has the question of this discrepancy on its agenda.

As for the rates broadcasters are actually charging, Ostankino as of November 5 was charging (whether just for political advertisements or for all forms of campaign uses is unclear) approximately 600,000 rubles per minute if the bloc provides finished tape, and an additional 150,000 rubles per minute if Ostankino has to provide technical assistance (this is approximately $600 per minute for unaided tape and $750 per minute with editing, etc.). On November 2, Grigory Yavlinskii stated that a radio station had quoted him a figure of 500,000 rubles per minute.

So far, the networks do not seem to charge different rates for different times based on time of broadcast or projected size of audience. One could conceive of a system in which the fee for political advertisements turns on whether the advertisement is broadcast during “access time” or during time above the limit (above the set-aside), under article 28 of the Duma election law.

Content Standards, Newscasts, and Journalistic Ethics

The regulations impose certain legal and ethical standards on journalists. Let’s take the question of whether a journalist can run for the Duma. The rules (sections 23 and 24) assume that such a race is possible, but prohibit the journalist from participating in the preparation of television or radio programs. Indeed, a number of journalists have already been listed as candidates. Interestingly, Ostankino chairman Vyachaslav Bragin, his deputy Kiril Ignatiev and Ostankno anchor Leonid Radzievsky are all candidates on the list of the Russia’s Choice bloc, and this has been ground for concern (though their candidacy does not seem specifically to be precluded under the regulations). According to Information Arbitration Tribunal member Aleksei Simonov, the Tribunal expects to examine whether individuals with these or similar responsibilities should refrain from candidacy or give up their positions for the duration of the campaign. The regulations also specifically prohibit candidates from being a moderator in television or radio debates.

A moderator in a debate is held to particularly high standards. Of course, a candidate is precluded from being a moderator. But a moderator must also respect the order of debate and similar rules as designed by the representatives of participants. The moderator is directed not to show bias and not to limit the times of presentation except when empowered to do so by the participants (or when the time for the program is about to elapse).

Broader efforts to achieve high ethical standards are found in Sections 20 and 22(1), which prohibit journalists in their professional capacities and mass media outlets themselves during the course of campaign from voicing preferences for particular candidates, electoral blocs, or party programs. Section 20 applies specifically to “journalists in their own programs and while participating in other broadcast programs,” whereas Section 22(1) applies to “instruments of mass media,” a far broader category, including the printed press. These provisions appear to include a prohibition on explicitly-labeled editorials, in contrast to the U.S. practice.

Sections 20 and 22(1) also raise the question: do these prohibitions apply only to state financed mass media as described in Section 28 of the State Duma election law, or to independent broadcasters and publishers as well? Section 22(2) explicitly imposes an “equal opportunities” requirement on state financed print media, analogous to the equal opportunities requirement in 47 U.S.C. 315(a): a candidate lacks an initial access right, but once a broadcaster has made air time available to one candidate, it must do so for all. However, does the absence of this or any other explicit remedy in section 22 against independent media outlets suggest that candidates lack remedies against those outlets, or that decision-makers such as the Information Arbitration Tribunal will fashion remedies as the need arises?

Objective measures of time may be possible to achieve. Far more difficult is to define and enforce standards of objectivity or gentility in elections. In the United States, there have been, from time to time, agreements among candidates to establish standards for behavior; but rarely have these been defined by the state other than through the defamation laws which give wide scope for attack on persons in the public eye including political candidates. Sections 25 and 13 of the rules are, thus, important because of their attempt to establish a standard for campaign conduct. All forms of campaign uses must be truthful and refrain from offending the honor, dignity, or business reputation of other candidates or blocs. It remains to be seen whether these sections will be interpreted more broadly than the statutory definition of defamation in Russian law.

None of these prohibitions deal, very explicitly, with the most deadly form of bias: subtle and not so subtle imbalance in the coverage, during the regular news programs, of blocs or candidates. Section 21 makes it an offense for a government official, a business or any civic association to exert pressure on a journalist to induce the presentation of biased coverage. The regulations make these actions similar to an offense under Article 58 of the 1991 Mass Media Act—hindering the freedom of information—which entails harsh sanctions.

The Information Arbitration Tribunal

The myriad of standards, rules, hopes and illusions makes no sense unless there is some way of monitoring or enforcing compliance. The regulations, in one of their most interesting flourishes, establish a new kind of tribunal—the Information Arbitration Tribunal, which has little in the way of power, funding or legitimacy but a great deal in the way of scope and ambition.

The only power that the tribunal has is public opinion and the authority to speak out. It may issue expert opinions, provide advice about ethical practices, make recommendations to television and radio companies about actions they might take to discipline their journalists, and make recommendations for improving the coverage of electoral campaigns.

The chair of the Committee, Professor Anatoli Vengerov, early proclaimed that he wants the Tribunal to become “a guarantor of democratic conduct and a mechanism protecting against attempts to manipulate public opinion.” But almost immediately, the Tribunal was forced to become a guarantor of more mundane and difficult matters: getting telephones, space, budget, and, most of all, respect. Undoubtedly, the Tribunal will be vigorously tested. On November 10, First Deputy Press and Information Minister David Tsabria observed that the Tribunal members “do not yet suspect what is going to befall them in a week or two” and predicted they would “rue the day they agreed to serve” on the panel.

Because it is new, because some of its members are little known, and because there is so little power, the impact of the tribunal is worrisome. And there could be competition: the Central Electoral Commission, before the Tribunal established itself, charged that a debate on the Public Opinion program on Ostankino violated the rules by taking place prior to registration. Under Section 8 of the regulations, meanwhile, candidates and election blocs can go directly to court where their complaint involves overcharges on transmission costs. One of the most important of its powers is to require the state media to carry announcements of its decisions.

The very name of the Tribunal has interesting resonances. The Tribunal uses the traditional term for third party arbitration or mediation either where the two parties have selected someone to engage in dispute resolution or specialists are used to resolve disputes in a particular form of activity. Here, however, the term is used, specifically, for a panel in which the President has made the appointments.

The makeup of the Tribunal seems fairly designed to provide the fact and appearance of independence: The chair, Anatoly Vengerov, a law professor, was the teacher of Yuri Baturin, a close advisor to President Yeltsin and the person most responsible for these regulations. Vengerov also was the professor for Victor Monahov, another member who has been the vice-chair of the St. Petersburg (city) council for freedom of information. Another connection: Baturin and Aleksei Simonov, another member of the Tribunal, formed a small Mass Communications School in Moscow last year to train young law students in the regulation of mass media. Two of the young students from the School—Aleksey Voinov and Mariana Paniarskaya—are also members of the Tribunal. From the disbanded Parliament, and Igor Eremin was also a member of that committee. Aleksander Kopeika was a deputy and the vice chair of the Parliamentary Committee on the Mass Media. In addition to Simonov, who is closely identified with the rights of journalists, Vladimir Suhomlinov is a high official in the International Confederation of Unions of Journalists, and Anatoly Ezhelev is President of the St Petersburg Union of Journalists.

Simonov has suggested that the Tribunal might make broad recommendations to all participants on how to improve their coverage of the elections. “Openness and glasnost are important for the court, especially because it does not have punitive sanctions. Without the ability to punish, we are reliant on the recommendation to a television and radio company to discipline a journalist who has violated the legal and ethical principles established by the regulations.”

If the Tribunal establishes a role for itself during the election period, perhaps it will be converted into a Russian version of the often ineffective American National News Council. It would then assume some of the responsibilities that the ill-fated observer councils (competing monitors created by the Parliament and the President) were poised to exercise during last year’s Moscow media law wars.

	Last Updated: 11/20/99
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