How to regulate the messengers? Insights from electoral media coverage in Portugal

By Carla Luis, May 26, 2015

Carla Luis is a researcher at CES - University of Coimbra, Portugal, and acknowledges the research grant from FCT SFRH/BD/79096/2011. More info available here. 

Media coverage is one of the critical issues worldwide when it comes to electoral integrity. According to “The Year in Elections, 2014”, recently released by The Electoral Integrity Project, media coverage scores only 60 points in a total of possible 100. 

International standards regarding the media have been developed by institutions such as UNESCO, The Council of Europe and OSCE, among others. While there is a wide margin for each state to regulate the issue, equal, impartial and non-discriminatory treatment is shared as a common benchmark. This is due to the prominent role of the media, being balanced information and impartiality important standards regarding election coverage. An impartial and independent body should also be appointed to monitor these issues. 

Portugal is probably not an exception on media coverage challenges and there is a public debate on this issue going on at the moment. The Portuguese electoral system for parliamentary elections is proportional, with D’Hondt method. There are 230 seats, divided among 22 multi-member constituencies. Parliamentary representation is usually achieved by about six parties, varying according to the political situation, with many more registered political parties, though not all running for each election. 

Facing a severe economic crisis, with external financial interventions, Portugal is a political exception in Europe in two specific aspects: no extreme right-wing party has emerged, nor a new left wing one has been able to capitalise the crisis discontentment. The two major political parties are again competing for power in what seems to be a tight race. However, new political parties have been created in the recent times, especially on the left, some with quite charismatic political actors. With no threshold, there is an effective chance that these small parties can elect members for the parliament, particularly in big constituencies, typically in urban areas. At this level the competition is also high. These two aspects, combined, can increase the importance of the media coverage for the upcoming elections. 

Portugal has a strong regulatory framework on elections. The Portuguese Constitution establishes the general principles of electoral law (art. 113), foreseeing “equal opportunities and treatment for all candidatures” during the campaigns (n. 3, b), being this further replicated in each electoral law. It binds not only public entities but also the media, within the electoral period (about two months before the election day). Paid advertising is forbidden and a limited free airtime period is provided to all candidacies, on an equal basis, during two weeks before the election (the official campaign period). The EMB, the National Electoral Commission (NEC) is the responsible body for media monitoring in the electoral period, i.e., from 60 days before the election takes place. This in line with common international standards, following regulatory patterns of countries such as Germany or France, towards equal treatment or equal opportunities on access to the media. 

Nevertheless, and despite the clear regulatory framework, if we look at the media coverage in the last 2011 parliamentary elections, namely news coverage time that televisions devote to each party, the figures seem to follow a pattern.

Table 1: Total time of news coverage to each party by RTP, public tv broadcast company, in the 2011 electoral period. Source: NEC, Portugal

Table 2: Total time of news coverage to each party by TVI, private tv broadcast company, in the 2011 electoral period. Source: NEC, Portugal

Table 3: Total time of news coverage to each party by TVI, private tv broadcast company, in the 2011 electoral period. Source: NEC, Portugal 

Looking at these tables, the question arises: is this the desired outcome and is this compatible with the general principle for equal media coverage? Is an equal level playing field being ensured to all competing parties? If the essence of elections is to provide freedom of choice, are citizens being duly informed of their available options? Should parties even be omitted from a 60-day media coverage period? Probably, the answer is no and the EMB has already raised the issue for several times.

The Council of Europe Guidelines for media coverage emphasize that in a PR system with low threshold “the case for equal access is stronger”, giving The Netherlands as an example[1]. Furthermore, regardless of the regulatory framework, the result to achieve should be a fair and balanced broadcast, with equal access for political parties. These would be specific obligations impeding on the media during the electoral period. 

Nevertheless, despite the clear legal framework, Portuguese media have been arguing that the existing regulation is too strict, as journalists are already bound by deontological codes of conduct (differently from media companies) and media freedom should prevail. But the question remains: are these outcomes of campaign coverage acceptable? 

It would probably help if we could place these questions within the electoral context, looking at the broader interests at stake. Media coverage has a paramount importance for fair and balanced elections, allowing voters and citizens to have an informed freedom of choice. 

Therefore, when looking at the Portuguese case, even changing the law will not change the principle and the need for balanced media coverage remains, also deriving from international standards. Furthermore, if with a strong regulatory framework the result is the above, one may wonder what the outcome of a non-regulated scenario would be. In 2015, with new entrants on the political area, many of them being small parties competing for the first time, and the tight competition scenario among the biggest parties, the demand may be higher regarding fair media coverage.

Regardless of the law, equal treatment by the media is foreseen by the Portuguese Constitution and also arises from international standards[2]. Equal opportunities to compete for power may well be the essence of elections, nowadays with the key role of the media. Broader public interests are at stake. Effective balanced media coverage during the electoral period will always be needed. Contrary to the excess of regulation argument, the OSCE 2009 Observation Mission even noted that the legal framework would lack a timely enforcement mechanism applicable to the media. So, maybe the answer is not amending the law towards a less regulated framework. 

Nevertheless, media coverage regulation being currently discussed at the Parliament, with a fierce opposition from media companies, threatening to boycott the campaign coverage, which already led to the withdrawal of a proposal presented by the major political parties. There is uncertainty regarding this outcome but the pressure is high and public debate rarely goes beyond the media perspective. 

With parliamentary elections taking place this autumn and presidential in the beginning of 2016, the scenario of potential legal reform is risky. It is already too close to the elections, and the strong opposition from the media may lead competing parties not to challenge their de facto power in the eve of two much disputed electoral cycles. The consequences of this tense context are still to be seen, but legal reforms in these scenarios are rarely desirable. 

It is probably for a reason that media coverage remains a problem worldwide. In nowadays mediated societies, no one seems to be willing to oppose powerful media and even the public debate seems to be misplaced. In the meantime, broader aspects like the public interest, the right to information and to be informed, pluralism, equal opportunities and fair access to the media seem to be missing from this very mediated discussion. Framing the debate on the specific electoral context could help to achieve a balanced answer, combining broader aspects at stake.

In the meantime, the quest for balanced media coverage remains. In the eve of crucial electoral processes, it is still to be seen who can successfully regulate the messengers. 

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[1] Media and Elections Handbook. Council of Europe. 1999, p. 32, available at http://www.coe.int/t/dghl/standardsetting/media/doc/Media&Elections_en.pdf

[2] For instance, see the Council of Europe, in Resolution 1636 (2008), “Indicators for media in a democracy”, state that “political parties and candidates must have fair and equal access to the media. Their access to media shall be facilitated during election campaigns” (8.5).