#06 ENSURE EQUAL ACCESS TO POLITICAL ADVERTISING

According to the Code of Good Practice, administrative bodies have the obligation to enable voters to get acquainted with the lists of candidates (VC I.3.1.b.ii). Also, in accordance with the freedom of expression, the minimum access to privately owned audio-visual media, when it comes to the election campaign and advertising, should be legally ensured for all candidates participating in the elections. (I.2.3.c). In order for these standards to be met, it is necessary to undertake the following:

1.  Improve the normative framework in the field of political advertising

   Although the current Law on Advertising applies accordingly to election campaigns, the provisions of the Law are so focused on commercial advertising that it is practically impossible to determine their meaning in the context of political advertising. This problem was noticeable during all election campaigns after the adoption of the Law on Advertising in 2016. During that period, the REM repeatedly issued opinions about the contents of the videos of presidential candidates and interpreted the provisions of the Law on Advertising. However, due to the lack of clear regulations, the way in which the REM interpreted the existence of comparative and misleading advertising was inconsistent. In order to overcome these obstacles, it is necessary to adopt amendments to the Law on Advertising or to pass a special law that would have the regulation of political advertising as unique subject. Furthermore, until the adoption of an act that would systematically regulate this area, political advertising in electronic media should be regulated in more detail by amendments to the Law on Electronic Media.

2. Clearly define the circle of entities that are allowed political advertising during the election campaign

   It is necessary to amend the Law on Electronic Media and the Law on Advertising and clearly prescribe that political advertising is allowed only during the election campaign and only to those political entities whose electoral list or candidate proposal has been announced by the competent electoral commission.

3. Improve the normative framework so that the display of promotional content that has elements of promotion of political subjects in the news programme of media service providers is considered a covert form of political advertising that is not allowed outside the election campaign

   It is an increasingly common practice for media service providers to download pre-recorded promotional videos containing elements of political party promotion from the social media accounts of parties in power or institutions before election campaigns and broadcast them in the form of news. Since this is content designed for the purpose of political promotion, it is necessary to improve the normative framework and prevent this type of promotion outside the election campaign.

4. Prohibit the broadcasting of advertising messages in which public resources are misused for the purposes of political promotion

   Due to the lack of a precise normative framework that would prevent unpunished broadcasting of advertising messages in which a political entity abuses public resources for the purposes of its promotion, during the 2020 election campaign, the REM did not sanction media service providers who broadcast advertising messages in pre-election blocs for which the Anti-Corruption Agency, earlier in the campaign, found that they were an illegal way of political promotion. Since this situation remained unregulated even before the 2022 elections, it is necessary to unequivocally prohibit the broadcasting of advertising messages of this content by amending the Law on Advertising or by adopting a special law that would have the regulation of political advertising as unique subject.

5.  Explicitly determine that the time slots leased by political subjects will be considered an advertising message, the duration of which is included in the allowed advertising space of 12 minutes during one hour on commercial television stations, i.e. 6 minutes on public media services

   Although the Law on Advertising, nor any by-law allow to media service providers to offer election participants to advertise, for the purposes of the election campaign, their electoral lists in time slots that last longer than those prescribed by the Law (6 minutes on public services and 12 minutes on commercial television stations), during the 2020 and 2022 election campaigns in the programmes of certain media service providers, programme contents lasting several tens of minutes were broadcast, which were used to promote a political entity against a certain fee. Since allowing political entities to lease time slots longer than those prescribed by the Law contributes to the inequality of election participants, it is necessary to amend the Law on Advertising and prohibit media service providers from promoting political entities for a fee outside of election advertising programmes.

6. Improve the transparency of political advertising financing

   According to the amendment to the Law on Electronic Media from December 2021, media service providers are held to publish fees for political advertising before the kick-off of the election campaign, as well as the criteria for determining the price of political advertising and payment terms. Given that this amendment does not provide sufficient transparency of political advertising during the election campaign, it is necessary to amend the Law on Financing Political Activities and the Law on Electronic Media and oblige media publishers, as broadcasters of advertising messages, to submit to the Anti-Corruption Agency no later than 15 days from the day of announcing the overall election results, contracts specifying the terms of lease of advertising space for all political entities (political parties, coalitions and groups of citizens), and other documents stipulating advertising conditions in case that they are not fully provided by the contract or that the contract has not been signed, as well as to publish these contracts or documents on its website. In the practice so far, in a large number of cases, the Anti-Corruption Agency has requested this information from the broadcasters of advertising messages after the conducted elections. This information, as information of public importance, can be requested from the Agency by any citizen, but the Agency has never proactively published it. In order for these data to be available to all citizens in a timely manner, it is recommended to determine the obligation for all MSPs where political entities advertised to submit that data to the Agency as soon as possible after the elections, and to oblige MSPs to publish them on their websites.

7. Determine indicators of unequal access to advertising

   In order for all election participants to advertise under equal conditions in the programme of media service providers, it is necessary to specify that the following will be considered creating of unequal position: a) providing one electoral list with more than one quarter of the total number of terms offered to political parties, coalitions and organisations for the promotion of a particular program of media service providers; b) different prices of political advertising for different parties, coalitions or organisations participating in the elections; and  c) more favourable or less favourable terms for publishing political advertising.