THE LEGAL REGULATION

OF ELECTORAL BROADCASTING IN ITALY

di Gianluca Gardini

 

 

 

Summary: 1 Introduction - 2 The Historical Framework - 3 The legal regulation of electoral campaigns - 4 The distinction between political propaganda, news and current affairs broadcasts in the Electoral Campaigns Act 1993 - 4.1 The ban on electoral advertising - 5 Access to the media after the "Par Condicio" Decree (decreto-legge of 20 March 1995 number 83) - 6 Conclusion

 

I. Introduction

Italy is currently coming out of one of the most confused and difficult periods in its history.

On 21 April 1996 over 49 million Italians went to the polls for the third time in four years, hoping to elect a stable and effective government capable of carrying out its programme for a complete term of office (1)1. From February 1996, a so-called "technical government", confirmed ad interim, led the country. The previous parliamentary elections in April 1994 had pushed the political situation out of control. Mr Silvio Berlusconi, a media tycoon, led the winning centre-right coalition as Prime Minister which almost immediately collapsed. The reform which introduced the "plurality electoral system" in 1994 was aimed at creating a more stable and responsible government, and had clearly failed (5). An interim (rectius - non-political) government, composed of administrative experts and chaired by the former central banker Lamberto Dini was then formed in January 1995. Afterwards, demands for institutional reforms coming from most parts of the political spectrum together with the lack of parliamentary majority capable of realising them, made it impossible to delay new elections.

 

As far as the last elections are concerned, there appeared to be both political and legal problems. There is the lack of real political alternatives to the programmes of the opposing sides, so as to meet the needs of voters for a radical reform of the institutions. Besides, the residual features of proportionality in the electoral system (25% of seats) means that a considerable number of political parties have continued to struggle for government, while preventing the setting up of a clear alliance of parties except for electoral purposes (6).

The rules, necessary to sustain genuine electoral competition, are barely present. Such contest makes political homogeneity difficult to achieve inside the legislature. This is the essential condition for creating a really effective and lasting governmental majority. The ambitious goal of constitutional reform requires a strong common purpose within Parliament to be successful (4)4. In turn this is possible only if the electoral campaign does not degenerate into an unregulated fight: respect for the opponent and the political position represented is the first requirement for any reform of institutions, which is necessarily based on far-reaching consensus between political parties. This seems to be the only way to bring about "radical change of direction in the heart of the state", which is so relevant to get Italian politics out of the present day impasse (5)5.

In 1996, the regulation of electoral competition was partially governed by an urgent provision of temporary validity, which had been issued ad hoc by the Dini government for the local elections of April 1995 and confirmed seven times thereafter in so far. It was an Order in Council (decreto-legge n.83/1995, better known as the "Par Condicio" Decree, a latinism to indicate the "equal opportunity" that governs competition between political forces (6)6). However, several doubts had been raised regarding the legitimacy of its renewal; the decree could be justified only by the specific emergency reasons that no longer existed. Therefore, according to the decision of the Italian Constitutional Court(7) , the Decree was not renewed, and the previous regulation came back into force at the end of 1996.

At present, a very hard debate on electoral campaign regulation is puzzling the Italian Parliament, which is trying to find a lasting solution for a still open problem in our legal system (8).

Moreover, the civil courts have had difficulties enforcing judgements rendered when one of the Orders in Council, which has subsequently expired, was still in force. As a matter of fact, it seemed natural for the judge to claim that the effects of a provision which was legitimised for emergency reasons, loses its validity as soon as the decree is not confirmed by Parliament. The result is that the provisions conveyed by this Order are theoretically coercive, but devoid of effectiveness in practice (9). A correct approach to the issue can only be gained by a chronological view of the most relevant aspects of legal regulation of electoral broadcasting in Italy.

2. The Historical Framework

At the end of World War 11, the main priority of the government in respect of campaigns was to avoid any discrimination between candidates and to control the most degenerative aspects of political competition. During this period, the most common means of communication for political propaganda were: newspapers, meetings posters, leaflets and signboards (10). Television and radio were not widely used because of their high costs and limited access to the population. As a result, neither the regulation of expenditure for electoral campaigns nor the forms of political propaganda, which might be dangerous for voters, were considered important enough. Thus, the regulation of political propaganda [advertising] was limited to: the allocation of spaces available for bill posting; the prevention of degenerative types of electoral activity that could turn out to be disruptive for ordinary social life (e.g. huge quantities of leaflets and posters). In the long-term, regulation was aimed at creating a level playing field between candidates.

With the arrival of television in Italian politics, the situation changed rapidly, as new techniques were developed to spread the candidate's message among the electorate. The first experience of electoral broadcasting in Italy was during the local elections of 1960, a decade later than other western countries, such as the United States of America and Great Britain. It has been said that "the period from the early 1960's to the late 1970's marked the end of an era and the beginning of a new one in the system of -mass communications of our country" (11). The parties left out of the government had been asking for allocation of air-time for some time when the political debate was transferred from the streets to the television studios. In fact, broadcasting activity was strictly controlled by the executive power and the majority parties had already been granted air-time during news and current affairs broadcasts (12). This situation generated demand from minority parties for a wholly free marketplace of ideas and opened the way for liberalisation of the access to broadcasting.

The first political broadcast ("Tribuna Politica") took place in 1961, followed thereafter by many broadcasts of the same kind throughout the decade. However, access to broadcasting was not yet considered a "right" belonging to political parties and candidates. Only the enactment of L. n. 103 of 4 April 1975 allowed political and social organisations to use broadcasting as a means of communicating ideas and opinions. The origins of this statute can be traced back to the judgement of the Italian Constitutional Court (hereafter Corte Costituzionale) which required the public television company (RAI) to allocate particular air-time to particular associations and groups, in order to promote plurality on the part of the public broadcasting monopoly (13). In a judgement which has quasi-statutory effect (called a "nearly-legislative" decision), the Corte Costituzionale provided that the only acceptable reasons for removing the right to broadcast from a private individual are those relating to pluralism and public interest, These goals were spelt out by the Corte Costituzionale as a) the need for impartial and complete news coverage on television; b) the guarantee of a proper right of access to broadcasting as far as possible by the technology.

In other words, the Corte Costituzionale concluded that plurality of opinions and ideas on television was to be considered the condicio sine qua non for the maintenance of the public monopoly on broadcasting. In this contest, L.n. 103 of 1975 implemented the intention of giving opportunity of access to broadcasts "if not to every single person, at least to the most relevant groups where the principle of social pluralism is shown" (14). As a result, under section 6 of L.n. 103/1975 the public television company is obliged to reserve a minimum share of the total television (5%) and radio (3%) programmes to political parties, trade unions, cultural societies, religious associations and other groups defined by law.

This does not, however, establish a right to access for broadcasting. The political nature of the Parliamentary Commission meant that the decision to allocate air-time to the applicants was considered non-justiciable and, therefore, no judicial proceedings may be brought to oblige the granting of air-time to qualified groups (15). This conclusion prevents the exercise of the right to use television as a means of expression (16).

Apart from the small steps that guided these new forms of communication in Italian politics, the use of television in the electoral arena had two main consequences for political life. On the one hand, the traditional means of political propaganda were gradually abandoned for a more "candidate-oriented" form of political communication. Television and radio became the most direct form of communication, information and comment on politics and politicians. On the other hand, this led to greatly increased electoral expenses which quickly reached levels higher than ever before. This therefore expanded the need for contributions for candidates and political parties.

In 1990, the monopoly of public television was broken by a parliamentary statute (called Legge Mammý - after the proposing Minister) which authorised private broadcasting activity on a national scale. However, only 12 networks were allowed to operate in the country while several restrictions, which were not very stringent, were established in the Act regarding the concentration of the ownership of the media (17).

Due to the intense use of electronic media in political communication, when Legge Mammý came into force the average costs of an electoral campaign became much greater than in the past. Political parties had difficulties raising the increased amounts of money to survive electoral competition. In addition, the normal election period of between 30 and 40 days has extended so that there is an almost permanent campaign period. The electoral contest is viewed by the parties as unbroken between poll dates.

3. The legal regulation of election campaigns

The situation described above, inter alia, fostered the spread of corruption, bribery and embezzlement, which have ruled Italian politics for many years. Yet, despite general public awareness of these electoral practices, it is only recently that the government began to address the phenomenon. The growing evidence of political corruption (aptly named "Tangentopoli" - which means "city of corruption" when literally translated), revealed partly by the judiciary, seemed to be unlimited. The first serious attempt to address the problem came in 1993 when the Italian Parliament passed an Act for the reform of the electoral system in local government

(L. 25 Marzo 1993, n. 81). Naturally, there was a section regulating the behaviour of candidates and political parties during election periods (18). The provisions in Part III of this Act (Section 28-30) were designed to update and strengthen the scanty and obsolete measures that governed the electoral struggle of candidates and political parties. While few of the principles contained in that part of the Act were directly related to the political access to media, propaganda and disclosure of information on electoral expenses of candidates and political parties, the fact of their enactment nevertheless represented the first sign of willingness on the part of the legislature to deal with the general question of electoral corruption and the regulation of election campaigns (19).

The legal provisions contained in L.n. 8111993 applied only to municipal and provincial elections, and in any event, many fundamental aspects of the electoral competition are left out of the scope of this Act. Spending limits in order to promote equity between political actors, controls on election expenditure, sources of political funding, state support for political parties, restraints on opinion polls during the electoral period, were still unregulated by law. However, L.n. 81/1993 was followed by the promulgation of a new Act, the Electoral Campaigns Act 1993 ( L.n. 515/93, hereafter ECA), which was approved just a few months after L.n.81/1993 came into force, with the purpose of creating a general legal framework for electoral complaints. The latter measure is very ambitious, seeking to introduce comprehensive regulation of the behaviour of candidates and their supporters during elections (20).

The law comes from the more general Bill on the reform of the electoral system, from which the part concerning the regulation of electoral propaganda was separated during the debate in the Senate (21). The legislation was supported - roughly speaking - by the left-centre parties, and opposed by the conservative forces represented in the Italian Parliament (22). Its purpose is to level the playing field during elections, caused by the unequal distribution of media power and control in the Italian system. As a matter of fact three out of nine networks operating nationally (twelve - if pay TV is included) (23) are owned by Silvio Berlusconi, an entrepreneur whose political preferences are liberal-conservative, and who recently founded his own party struggling for supremacy of the centre-right in the country (24). This situation, added to the fact that two of the three networks belonging to the public broadcasting company (RAI) are controlled by the government - which has never been very left-wing in the last 50 years of Italian republican history - made it necessary to regulate political propaganda during electoral campaigns. This was aimed at terminating the privileged status of the political forces which have controlled the country, and to place everyone on an equal footing as far as the use of public airwaves is concerned.

The primary purpose of legal regulation of electoral campaigns is to eliminate, or at least reduce, corruption in political life, by controlling the escalating costs of elections caused by the introduction of electronic media in the political arena. The principal objectives of the Electoral Campaigns Act 1993 can be summarised as follows: to safeguard the integrity of the electoral process by creating equal opportunity for everyone to participate at the electoral debate on mass media; and to control and reduce the high costs of political campaigning, particularly the costs of advertising on electronic media, which may affect the integrity of the political process.

The Statute can be divided into three parts. The first concerns the access of politicians to mass media during electoral periods. The second is aimed at regulating the financial and economic aspects of elections. The third provides a complicated system of controls and sanctions which aims to enforce the first two parts. This article solely examines the aspects related to the political broadcasting ruling. It mainly focuses on the evolution in the regulation of access to the media by political parties and candidates, as well as the restrictions to the freedom of broadcasting and the criteria for allocating air-time to the electoral competitors introduced by

the law.

The most evident limitation of the Electoral Campaign Act 1993 is represented by its failure to provide regulation of electoral campaigns valid for all types of polls. Even after the introduction of this law, local, regional, European elections and referenda are still governed by

specific rules which only partially correspond to the ones established by the 1993 Act. This fragmentation has caused many of the problems which occur in applying the proper regulation to every exercise of democracy and raises doubts about the respect for the equal treatment rule for analogous situations, as provided by section 3 of the Italian Constitution. Nevertheless, the ECA is very important because it marks an attempt to give recognition and conceptual unity to a phenomenon which had been almost entirely disregarded by the law.

It should be emphasised that one of the most important innovations contained in the Electoral Campaign Act 1993 is the establishment of a "right" of access to broadcasting for parties, lists of candidates and political organisations during elections. According to section 1 of the Electoral Campaigns Act 1993, the public and private broadcasting licensees are to ensure, with equality of conditions, the allocation of sufficient air-time for broadcasting to political parties, movements and groups. This takes effect 30-65 days before the election date (depending on the public or private nature of the broadcaster) and is subject to judicial review. As a result, even though the ECA makes no explicit mention of any "right" to access to media, the statutory duty imposed on broadcasters to allocate air-time to political organisations gives rise to a corresponding, and justiciable, expectation to be able to broadcast ideas, opinions and information during electoral campaigns.

It seems, then, contrary to what was asserted in the context of L.n. 103/1975, that all the elements necessary for a proper right of access already exist. There has been no judicial decision yet in this area, and it is therefore impossible to say whether the judiciary will assume

a position consistent with this juridical interpretation. The right of access to electoral broadcasting for political parties and candidates risks being defined as too wide by the law. Broadcasters could well encounter serious difficulties in giving fair treatment of every request by those interested in expressing their political viewpoint during an election. In fact, section 1 of the ECA requires broadcast licences (whether public or private) to permit access to their station to any political movement. This definition is not further qualified. This section creates an affirmative obligation which is only limited by the concept of "reasonableness" with regards to the amount, duration, and placement of access time made available by the station. This entails using a "manner and place regulation" to temper the rigidity of the new "right" of access to television asserted in favour of candidates and political movements (25).

In addition to this positive obligation, section 1 introduces a balancing obligation for the broadcasters, which means that once a candidate has been allowed to use "the airwaves of a station during the electoral campaign, all other qualified candidates have the right to equal access in terms of price, duration and time of broadcast on the same station". In a multiparty system, these provisions can be very dangerous for the proper working of the parliamentary representative mechanism. The jurisprudence of the German Constitutional Court is helpful on this issue, when it affirmed that elections should lead to the formation of a government and, therefore the political parties capable of forming a government should be given more opportunities to present their ideas on radio and television (26). In addition, the government's effectiveness and stability are also the main goals of the recently approved electoral reform which had given rise to the adoption of a majority system in Italian parliamentary elections. These arguments, as well as the protests lodged by the broadcasters during the electoral campaign of March 1994, suggest the need for reconsideration of the law given the overly rigid system of allocation of air-time that seeks to guarantee fair treatment of candidates and parties in elections.

Conversely, the absence of any discretion on the part of the broadcasters in complying with these obligations could lead to a refusal to cover political campaigns which could actually undermine the candidates right of access. The scarcity of air-time causes severe restrictions on claims to access which only the actual representativeness of political parties can justify. Hence, the key amendments proposed (and temporarily implemented by the Order in Council n. 83/1995, hereafter "Par Condicio" Decree) for the ECA are mainly related to the air-time allocation system. In particular, they aim at granting free-time access to candidates in amounts proportional to the strength of the parties they represent (27) and at the same time imposing a minimum of free-time access to minority and extra-parliamentary parties.

4. The distinction between political propaganda, news and current affairs broadcasts in the Electoral Campaigns Act 1993 (ECA)

The ECA seeks to give an "objective" classification of the content of electoral communication dividing electoral communication into three categories a) propaganda; b) advertising; c) news and current affairs. Before the ECA, news and propaganda were considered as one, with no relevant differences in the legal regulation of these two forms of broadcasting. Only the most commercial aspects of political propaganda had been banned during the 30 days before the date of local elections by L.n. 81/1993. The distinction between the concepts of propaganda, advertising and news in political communication was brought by the Standing Committee on Constitutional Matters at the Chamber of Deputies, in order "to steer the complicated system of relationships" between candidates and voters during the electoral terms (28).

A great deal springs from this distinction, with repercussions on the configuration of the right to access to media. The right to equal treatment of political competitors has been provided not only with regard to electoral propaganda broadcasts but also to news and current affairs programmes relating to political matters. Propaganda and news broadcasts are two different concepts: the former concerns what has been described as a particular, systematic form of communication for spreading a message (political, religious, commercial etc.) aimed at stimulating or persuading the addressee to behave in a certain way (29) . The latter do not aim at gaining the assent of the addressee - they aim to provide information to the public. Propaganda is produced by political actors, whereas news and current affairs are the responsibility of the news broadcasters. It is submitted that any restriction to the first activity affects the freedom of expression of candidates and parties (section 21 of the Italian Constitution), while the legal regulation of the news and current affairs broadcasts affects the right of financial autonomy (section 41 of the Italian Constitution) as well as the freedom of speech (section 21, cit.) of the broadcasters. No doubt, news and current affairs broadcasts represent the main expression of the autonomy of the broadcasters, whose freedom of speech is best achieved in this way. Unlike electoral broadcasting undertaken by the political movements and candidates, "news and current affairs programmes are the product of the editorial judgement of the broadcasting bodies alone" (30).

For this reason, the detailed regulation of this type of broadcasts provided by the ECA (and repeated with further restriction in the "Par Condicio" Decree) is open to criticism. Any statutory interference with the discretion of broadcasters appears to violate their freedom of speech which from a constitutional point of view is entirely illegitimate.

Another obstacle to the legitimisation of this statutory intervention, imposing equality of treatment in news and current affairs through the definition of standards of balance and impartiality, is represented by the Constitutional right to a free vote (section 48 Constitution). It can be argued that equality of treatment is rendered impossible by the natural limitation of air-time. In some circumstances, this might require the removal of a relevant part of the political broadcast by the broadcaster in order to comply with the political obligation of fairness. This affects the right to vote because of the requirement of a conscious as well as an unforced consent. "To know in order to rule" is a central principle to bear in mind in the regulation of news and current affairs programmes related to political coverage during elections, and without full knowledge, the right to vote is not fully exercised (31).

Moreover, the infringement of freedom of speech of broadcasters is made worse by the forms of regulation provided by the law. In order to achieve equality of treatment in news and current affairs programmes, the definition of the standards of balance and impartiality has been delegated by the ECA to non-statutory bodies, like the "Garante per la radiodiffusione e l'editoria" (the independent agency for the control of private broadcasting activity, which has now become "AutoritÓ per le garanzie nelle comunicazioni" and the "Commissione RAI (the parliamentary commission for the control of public broadcasting activity). In this way, in order to ensure fair political information, the constitutional right to free speech (section 2 1) of broadcasters is likely-to be restricted by administrative, or at least non-statutory, acts provided by regulatory bodies.

4.1 The ban on electoral advertising

Electoral advertising is seen as a particular form of political propaganda, subject to several restrictions and limitations by law.

Under section 2 of the ECA, televised political advertising as well as press advertisements are banned during the last 30 days before the election date. Also, under section 3 of "Par condicio" Decree, the period between the formal announcement of elections (45-70 days before the election date) and the 31st day before the poll date, so-called "objective" advertising only is permitted so as to provide voters with information on the name of candidates and the name and symbol of the parties they represent.

The reasons for such restrictions can be found in the increased importance of advertising in elections. Advertising accounts for a large percentage of election costs. In addition to its high costs, it rarely presents detailed information about substantive policies and proposals. In fact, political advertising draws its powers from the same techniques as commercial advertising, and, by doing that, it can distort the issues, lacks substance and harm the political process by focusing the attention of the voters on the "image" rather than on the content of the policies (32). In other words the candidate and the political programme are sold like commercial products, in an attempt to match, as closely as possible, the electorate's demand with the candidates' supply. For this reason, political (rectius, electoral) advertising has been banned, or at least limited, during the period of electoral campaigns. In fact, the restrictions imposed by the law are quite mild if compared with the constant and unlimited nature of modern campaigns. From this point of view, the ban on electoral advertising has a more symbolic meaning than a practical one. It would be easy, if they so desired, for candidates to concentrate all their advertising and commercial strategies on the day before the beginning of the ban.

In addition to these restrictions, section 3 of the ECA makes several dispensations for the regulation of electoral advertising which is connected to its particular content. In protecting the electorates right to information, the broadcasting of notices about when debates, conferences and speeches will take place is permitted by the law.

Although noting above that political and commercial advertising have features in common, in terms of the techniques and strategies involved, the two are quite distinct. Commercial advertising is a component of entrepreneurial activity, and an instrument of business. The aim of commercial advertising is an economic one, strictly tied to the economic and commercial freedom of citizens which is protected by section 41 of the Italian Constitution. By contrast, electoral advertising can be considered as a form of expression of candidates and as a peculiar exercise of freedom of speech that should be granted to each candidate and political party under section 21 of the Constitution. It cannot be denied that parties use these advertisements as a means of giving information on political programmes and ideas and that these are often the most effective source of information about candidates and parties for voters (33).

From this perspective, it is not difficult to understand the legislator prudence and caution in imposing heavy legal restrictions on an aspect of the candidates freedom of speech and the voters right to information. Freedom of expression requires that debate on public affairs be "robust, uninhibited and wide open" (34), so that people can freely discuss governmental affairs and choose how they wish to be governed, without regard to the means used by candidates to communicate with the voters.

5. Access to media after the "Par Condicio " Decree (decreto-legge 20 March 1995, n. 83)

The general elections of March 27 1994, which were won by the centre-right coalition under the leadership of the tycoon Silvio Berlusconi, provoked many protests from the losers because of the unbalanced media coverage during the election campaign. As has been reported, more than 10 million votes (25% of the total) were influenced by television during that campaign. In particular 4 million were transferred from the left-centre to the right-centre by the private networks belonging to Silvio Berlusconi (ReteQuattro, Canale Cinque, Italia Uno), whereas only two million were captured by the public licensee (RAI) in favour of the left-centre coalition. As a consequence, a new and fairer regulation of electoral broadcasting was demanded by the opposition parties in order to guarantee equal treatment to political actors during elections.

To this end, a Bill amending the ECA was proposed by a coalition of parties (Partito Democratico della Sinistra; Rifondazione Comunista; Partito Popolare; Lega Nord) which gathered ad hoc to reform the access to broadcasting during election periods. Another motion on the same issue was presented to Parliament by Agostino Gambino, Minister of Telecomunication in the Dini Government, imposing several restrictions to political communication during the electoral campaigns (35).

It should be borne in mind that Prime Minister Dini, when appointed at the end of January 1995, had indicated the electoral reform for the "par condicio" was a priority objective of his technical government, which arose from the necessity of "making up for the difficulties in political broadcasting created by the ECA(36) " . Earlier, during the traditional speech at the end of the year (1994), the President of the Italian Republic, Oscar Luigi Scalfaro, had pointed out the necessity of safeguarding substantial equality between the competitors at elections and he used for the first time the expression "par condicio" which became so popular among commentators.

After an exhausting struggle concerning amendment of the ECA, as well as the contents and form of the amendments required, the technical Government chaired by Lamberto Dini decided to resolve the dispute by enacting a Order in Council with the aim of improving the regulation of the access to media during elections. This decision was adopted in March 1995, in view of the forthcoming local elections of April 1995, which were considered an important test for understanding the real state of parties strengthen within Parliament after the fall of the Berlusconi Government in December 1994. The agreement required to pass one of the proposed Bills was not reached inside Parliament because of the divisions between the political groups, as is shown by the debate which took place in the Standing Committee on Constitutional Matters at the Chamber of Deputies (37). The Government therefore faced the alternative of continuing to apply the law in force at that moment or assuming responsibility in front of the electorate of issuing a decree in order to change the refutation of political communication for the local elections of April 1995. The latter solution was preferred and a 24 sections Decree was issued by the Government with the aim of introducing real equality of treatment for candidates and parties participating in elections.

From a general perspective, it can be noted that the main purpose of the "Par Condicio" Decree was to improve the existing regulation. This aim was pursued, on the one hand, by creating an effective level playing field for political competitors through the grant of free air-time for political propaganda to the most representative parties contesting a minimum number of constituencies at elections. However, has been pointed out "nobody has the freedom to drink champagne apart from the few who could afford to pay the cost of it from those who produce it" (38). On the other hand, the Decree tries to put an end to the high costs and to the "trivialising" of political debate which resulted from the abuse of paid political advertising on electronic media. In this regard, severe restrictions to the transmission of political advertisements were establish for the two month period before the poll date (39).

Further analysis of the guidelines brought about by the "Par Condicio " Decree is beyond the scope of this article (40). Suffice it to say that it contained many provisions about the use of the media during all electoral campaigns and, as with the ECA, it covered referenda and all other types of election to public office. The focus of this article is on the impact of the decree on the previous system of regulation and on Italian politics in general.

The new regulation introduced by the "Par Condicio" Decree was greeted with mixed reactions. On the one hand, the obligation of public and private broadcasters, on a national and local scale, to grant free-time for electoral propaganda on television and in the press during the last 30 days of electoral campaigns was generally greeted with enthusiasm. This is because, theoretically, it provides equal opportunity for all participants in the political arena and fosters

electoral debate (41).

The new criteria introduced by the "Par Condicio " Decree for allocating air-time to candidates and political parties during the electoral campaign have been welcomed for the most part. As has been emphasised, the ECA only imposed a requirement of equal treatment of political actors during the period of the electoral campaign (30 or 45-70 days before the poll day, depending on the private or public nature of the media concerned). In this way, the result was that parties with different chances of forming a stable government were allocated similar air-time, either in the form of political broadcasts or in terms of exposition within the news and current affairs programmes. This endangered the proposal for creating a new mechanism of representation, where small parties are put together with the larger ones for the proper functioning of a two-party system. The "Par Condicio" Decree maintained an affirmative right of access to media for political parties, but, in so doing, it abandoned the over-rigid statutory balancing obligation imposed previously which might have led to several distortions in a first-past-the-post system of representation. Therefore, the allocation of air-time among parties provided by the decree was related to the size of their representation in Parliament and to the number of constituencies contested, while a minimum portion of air-time was expressly reserved for extra parliamentary parties (42). This solution can be considered a clear improvement for our representative democracy.

On the other hand, the ban on every type of paid electoral propaganda (in this definition including the advertising as well as longer political messages) together with the strict regulation of information programmes on radio and television was deeply criticised as an unlawful interference by the government in the freedom of expression of broadcasters and editors. In the opinion of the opponents, the exclusion of paid propaganda reduces, instead of promoting, the quantity of political speech during the final rush of elections, with the risk of impoverishing the public debate (43). Besides, the provision of highly defined broadcasting standards for news and current affairs programmes threatens the critical function of electronic media during the electoral campaigns.

It is submitted that this regulation should be seen as a transitory solution, dependent on the discretion of the daily government. At the time of writing, and after the decision of Corte Costituzionale, regarding (in general) the abuse of Orders in Council by the Government (n.360/1996, cit), "Par Condicio" Decree has lost its validity and, nowadays, the ECA is regulating Italian elections, after the emergency of the election that made this temporary measure necessary. Hence, any reform of the regulation of electoral broadcasting should be examined by Parliament, in search for a weighed and stable solution for the use of media during elections. In so doing, the best way forward will be to take consideration both the performance of the ECA and the experience shown by the enforcement of the governmental order for the par condicio.

6. Conclusion

After a long wait for legal regulation of broadcasting, the Act passed in 1993 by the Italian Parliament has been subjected to several amendments thus far. Even if they are only temporary reforms, approved by the government in the face of the parliamentary elections of April 1996, they clearly show the necessity for a more general revision of the choices made by the ECA with particular regard to electoral broadcasting.

 

Although the ECA triggered a large amount of criticism, mostly due to the unbalanced media permitted by its statutory provisions, the importance of such regulation should not be underestimated. Since the law was enacted, the right of access to broadcasting by parties and political groups during the (general) electoral campaigns has been formally recognised, whereas the opportunity of using media for specific interests was substantially denied before.

The overhead costs of electoral campaigns are controlled, if not reduced, through the restrictions on media advertising and propaganda provided for the two months leading up to election day. At the same time, the general regulatory statute provides candidates with air-time at wholesale price, "levelling the field" for all competitors and giving each of them an equal chance of succeeding at elections.

It is further submitted that the "bad" performance of the ECA during the poll of March 1994 -

so far as the regulation of the media is concerned - was more due to the unexpected entry into politics of one of the most wealthy businessmen in the country, who owned three of the twelve networks licensed in Italy and controlled a highly relevant proportion of the Italian communication industry, than to a real failure of the law passed by Parliament.

Thus, the ECA for the most part has had beneficial effects. It has been finely weighed and balanced by Parliament in order to guarantee equal treatment of candidates and political parties during elections. The events of 1994, where a new party was formed in three months by a media mogul, could not have been foreseen by the legislator. This event should not invalidate the regulation introduced by the Act nor lead to too precipitate reform of the provisions.

For these reasons, the amendments put forward by the "Par Condicio" Decree in 1995 seem more dangerous for freedom of expression of the participants in elections. What is particularly

dangerous is the heavy obligations imposed by the Decree on every responsible political communication including journalists, comperes, anchors and TV directors in order to ensure absolute equality of treatment for candidates and parties during elections. As the local elections of 1995 have shown, it is submitted that this has the effect of damaging rather than preserving the integrity of the electoral process. There has been a 60% or greater decrease in electoral broadcasting with respect to the elections held in March 1994 (44). Such a drop in the amount of political information should give rise to caution about the risks of too detailed regulation of electoral broadcasting. This could discourage the media responsible for deciding programming of political or electoral matters from doing so in order to avoid sanctions if there are any irregularities (45).

Moreover, the solution of conferring the detailed regulation of news, current affairs, propaganda and advertising to administrative agencies (Garante per la radiodiffusione e l'editoria, Comitati regionali radiotelevisivi and, nowadays, AutoritÓ per le garanzie nelle comunicazioni, Comitati regionali delle comunicazioni) or to a Parliamentary Standing Committee (Commissione RAI), even though only for the limited period of the electoral campaign, does not adequately guarantee the constitutional rights such as freedom of expression, speech and information which is essential.

Nevertheless, some of the suggestions in this provisional injunction deserve close consideration, due to the improvements they can make to electoral broadcasting. A free-time approach, for instance, is fundamental to equal opportunity between political competitors. On its own, the establishment of an affirmative right of access to political broadcasting by parties and candidates (the justiciable right to be provided with air-time during the election period) does not guarantee access to the media for those subject to it to broadcast their programmes and policies. In the election of March 1994, where the air-time was sold at a very high price, many parties were effectively excluded from the political debate and, for this reason, the rights of the electors to be informed of the policies and issues involved in the electoral process were infringed (46).

Also, the proportional criterion in allocating air-time to parties, introduced for the first time by the 1995 Decree, seems to be a better solution for the coherent functioning of the representative mechanism in a first-past-the-post system. This is because, as has been pointed out, an over rigid equality of treatment granted to all the parties in the political spectrum "could only serve to undermine rather than promote democratic goals and purposes (…) by allowing access by special interest groups which have no legitimate claim to be represented in government at all" (47).

 

In conclusion, it can be said that some improvements to the ECA can be drawn from the "Par Condicio" Decree, especially the granting of free air-time and the access to broadcasting for genuinely representative groups of the electorate. The benefits of these provision are self-evident. The experience of other liberal democracies (UK, France and, in part, Germany) is enlightening, and proves that representative governments can flourish without paid political advertising on the electronic media or with a selective system of allocating free air-time units during elections (48).

Other than these points, any reform of the legal regulation of electoral broadcasting requires a careful evaluation carried out by Parliament having regard to the outcomes of previous elections. At the time of writing, these outcomes do not seem to be significant enough, and the parliamentary debate on regulation of electoral broadcasting is still burning.

 

Footnotes

1 (1)The Wall Street Journal and The Times, April 18, 1996. The New York Times April 20, 1996. The electoral campaign for the election in April 1996 came to an end with the following outcome: First-past-the-post system at the Chamber of Deputies: L'Ulivo - centre-left coalition - 45.4%; Il Polo per le LibertÓ - centre-right alliance- 40.3%; Lega Nord -.independent federalist party - 9.9%. In the Senate: L'Ulivo - 41.2%; Il Polo - 37.2%; Lega Nord - 10.4%. Within the Italian Parliament the coalitions (and parties, when not part of any coalition) are (roughly) represented by the following number of MPs: l'Ulivo - 152 MPs at Senate, 300 MPs at Chamber of Deputies ; Polo delle libertÓ - 116 MPs at Senate, 246 MPs at Chamber of Deputies ; Lega Nord - 27 MPs at Senate, 59 MPs at Chamber of Deputies ; Others - 20 MPs at Senate; 25 MPs at Chamber of Deputies.

Coalition problems exist, especially for the Chamber of Deputies, where the centre-left party needs the support of the communist party ( Rifondazione comunista) in order to reach the majority of the seats inside the Assembly. This chamber consists of 630 deputies made up of. 284 to the centre-left coalition; 246 to the centre-right alliance; 35 to the communist party; 59 to the federalist party. The centre-left and the communist party came to an agreement before the 1996 election. In spite of this, there was no governmental agreement between these two political forces, and this caused serious problems for the stability and effectiveness of the government. As a matter of fact, that led to a very serious coalition crisis in October 1998, which caused the collapse of the Government led by Romano Prodi. The crisis, due to the opposition of Rifondazione comunista to some of the proposals in the annual Financial Act, came to an end with the appointment of Massimo D'Alema, the former leader of Partito Democratico della Sinistra, as the new Prime Minister. In his first speech to the Parliament, D'Alema said that his new Government had not been chosen directly by the electorate, but it was formed by the urgency to find a way out of the crisis which affects the whole Italian political system. In his words "the collapse of Prodi's Government witnesses the still unsolved difficulties of the Italian political system. (…) The way out of such difficulties is not represented by new elections, which, if carried out with the old rules, will restore the same instability". See the programmatic speech of the Prime Minister to the chamber of Deputies, held on 22 October 1998 and available on the web site of the Italian Government (http://www.palazzochigi.it/).

(2)2 The electoral reform of 1994, eagerly endorsed in a referendum 1993, was meant to bring in a two-party system and to deliver stable governments. Instead, it has produced a hybrid, where one quarter of the seats are allocated by proportional representation, and the rest are contested under British "first-past-the post" rules. One commentator said that the reform (which has been nicknamed "Mattarellum - after Mattarella, the name of the proposer) "seems to have been dreamt up by a party of drunken sailors after a night in the town". The Economist 23 March 1996.

(3)3 As The Economist (23 March 1996) reports "the buzzword, these days is desistenza. Most of the 40-odd parties will stand down in seats where its allies have a better chance of winning".

(4)4 This is because under section 138 of the Italian Constitution, any amendment to the constitutional order requires two separate ballots of each parliamentary Chamber, with a two month interval between each ballot. If the second ballot does not obtain two thirds of the members of each Chamber, it is possible to subject the constitutional amendment to a confirmatory referendum. Recently, a Constitutional Statute bas been enacted (24 January 1997 n. 1) which created a special parliamentary commission (called "Bicamerale") to amend Part II of the Italian Constitution. The activity of the Bicamerale ended up with a failure in June 1998. In any case, the regulation of the electoral system was kept out of the reform, firstly because this was not previously included in the Constitution, and secondly because there was a political agreement to avoid any constitutional regulation of elections and the electoral system. At the time of writing, the decision n. 13/1999 of the Corte Costituzionale, issued on 28 January 1999, has found the referendum for the abolition of the residual portion (25%) of seats allocated by proportional representation admissible. The referendum, which will be held in June 1999, if passed by the electorate, would have the effect of transforming our mixed electoral system into a pure first-past-the-post one.

(5)5 The expression is borrowed from Paul Ginsborg, and it is reported (in Italian) in the article which appeared in L'Unita, 18 March 1996

(6)6 See the Order in Council n. 83, issued on 20 March 1995

(7) See decision n. 360, handed down on 24 October 1996 and reported in Giurisprudenza Costituzionale (1996), p. 3147

(8) See the Bill AS 49197, presented to the Parliament in August 1999, on equal access to media during the electoral campaigns and political communication.

(9) With a decision of 24 February 1996, the Pretura of Milano has ruled to repeal fines for an amount in excess of 400 million lira, originally issued against Fininvest, the broadcasting company owned by Silvio Berlusconi, for the breaches of the regulation concerning the broadcasting access. See Pretura di Milano, 24 February 1996, in Foro italiano (1996), I, 1459

(10) In Italy, during the first electoral campaigns after the collapse of fascism, chaotic use of billboards caused many problems in communities and cities. Posters were stuck up everywhere, even on precious monuments and works of art, causing problems to local councils who were obliged to repair the damage caused by the irresponsible behaviour of candidate and parties. This happened especially in the 1953 election between minority and majority forces This election made all parties aware of the need for a solution to this problem. Therefore, Parliament enacted a statute on the regulation of political propaganda (L. n. 212/1956), reserving proper spaces and places to bill posting. This regulation, regarding the traditional means of propaganda, is mostly still in force at present.

(11) See G. Mazzoleni, Dal partito al candidato. Come cambia la comunicazione elettorale in Italia, in Polis (1990), 250

(12) In 1958, a Member of Parliament reported that the usual procedure of long lasting press and television coverage of Cabinet members in conference (where, in effect, the programmes and activities of the Government were advertised in order to persuade the viewer to support the majority) had had good results.

(13) See decision 225/74 of the Corte Costituzionale, issued on 10 July 1974, in Il Diritto delle radiodiffusioni e delle telecomunicazioni, (1974) p. 132

(14) Idem

(15) See P.Barile, L'accesso alla Rai-Tv: una situazione giuridica non protetta? in Il Diritto delle radioffusioni e delle telecomunicazioni, (1977), p. 269. A.Pace, Stampa, Giomalismo, radiotelevisione, Padova, 1983, p. 316; E. Santoro, Spunti per un dibattito sull'accesso alle trasmissioni radiotelevisive, in Il Diritto delle radiodiffusioni e delle telecomunicazioni, (1976), p.449

(16) According to the decision approved some years before by the court of Rome, which said that the access to broadcasting is only "a simple and abstract possibility for anyone". See Tribunale di Roma, decision of 12 March 1969, in Foro Italiano (1970), I, p. 2612

(17) See the parliamentary statute enacted on 6 August, 1990, n.223, regulating the public and private broadcasting system. This Act has been heavily criticised because of its loose property limits concerning the broadcasting companies. Under Section 15 par.4 of this Act, "at national level, the broadcasting licences granted to the same subject, regarding either radio or broadcasting activity, cannot exceed 25% of the networks allowed by the national plan, and, in any case, cannot be more than three". This provision bas recently been considered unlawful by the Constitutional Court (decision n.420 of 7 December 1994, reported in Giornale di diritto amministrativo, 1995, p. 43).

Hence, a new parliamentary statute has been enacted on 31 July 1997, (n. 249/97), regulating the whole broadcasting and telecommunication system. According to this Act, a person or enterprise cannot control more than 20% of analogous networks (radio and television permitted by the national broadcasting plan. The plan was approved only in October 1998, and provides 17 national networks, of which 12 operating on national level and 6 on a local one. Notwithstanding the enlargement of the broadcasting system, the situation is likely to remain substantially unchanged at least for the next two to three years, when an effective development of new broadcasting technologies, as satellite and cable, will become appreciable. At this regard, it must be underlined that the new plan fixes the date of 2010 as the deadline for the analogical era of television. For early comments on the new regulation of broadcasting in Italy, see O. Grandinetti, La nuova disciplina della televisione, in Giornale di diritto amministrativo, (1997), p. 1105; S. Cassese and A. Valli, Il nuovo diritto delle telecomunicazioni, in Giornale di diritto amministrativo, (1997), p. 1115.

(18) See G.GardÝni, Commento alle norme sulla campagna elettorale, in Elezione diretta del sindaco, A.Barbera ed., Rimini, 1994, p. 173.

(19) Ibid

(20) For early comments on L.n. 515/1993, see C.Fusaro, Media, Sondaggi e Spese Elettorali, in Rivista italiana di scienze politiche (1994), p. 431; G.Gardini, La Disciplina delle Campagne Elettorali, Padove, 1996; Pagano, Le Nuove Regole sulla Campagna elettorale, in Bollettino di informazioni Costituzionale e Parlamentari (1994), p. 431; C. Specchia, Il Sistema di Finanziamento Pubblico dei Partiti Politici in Italia, ibid, p. 146

(21) See the Bill n.2871, passed under the Senate's approval 1 July 1993

(22) During the Senate examination, the Partito Socialdemocratico, Partito Socialista, Partito Democratico della Sinistra, Democrazia Cristiana, and Lega Nord expressed their favourable vote for the reform; on the other hand, the Partito Liberale, Rete, Partito Repubblicano, and Rifondazione Comunista voted against it.

(23) Regarding the recent changes in the legal regulation of the Italian networks, see above (note 16)

(24) "Forza Italia" is the name of the political party created at the end of 1993 by Silvio Berlusconi. It reached governmental leadership at the general elections of March 1994, only a few months after it was founded. During the last election of April 1996, Forza Italia was allied with Alleanza Nazionale, the very right-wing force in parliament, as well as with the right oriented fringe of the catholic political movement (CCD and CDU) operating in the system

(25) See E.Barendt, Free Speech in Australia: A Comparative Perspective, in Sydney Law Review, 16 (1994), p. 164

(26) 14 BverGE 121 (1962), On this issue sec also E.Barendt, Broadcasting Law. A Comparative Study, Oxford 1995 p. 175; K.D.Ewing, New Constitutional Constraints in Australia, in Public Law (1993) p. 256

(27)In this case, the factors in the allocation of air-time are the number of votes obtained by the party at the previous election, the number of candidates put forward at the forthcoming poll and the number of constituencies contested, as well as the length and continuity of the party's existence, the membership and the party's representation in parliament and government

(28) This is the expression used by Giampaolo D'Andrea, who presented the Bill at the Chambers of Deputies during the session of October 11, 1993

(29) See G.Sani, Propaganda, in Dizionario di Politica Bobbio, Matteucci and Pasquino ed. Torino, 1963, 904. B.L Smith, Propaganda, in Intemational Encyclopaedia of Social Sciences, XII New York, 1968, 579.

(30) See A.E.Boyle, Political Broadcasting, Fairness and Administrative Law, Public Law (1986), p. 583

(31)This quotation is from Luigi Einaudi, one of the first Presidents of the Italian Republic (1948-55), but the concept has been widely developed, from a political and philosophical point of view, by Norberto Bobbio (see Quale socialismo? Discussione di un'alternativa, Torino, 1976, 43)

(32) For a different view of the role of political advertising in electoral campaigns, see M. Scammell, Political Advertising and Broadcasting Revolution, in Political Quarterly (1990) p. 200. Here the author underlines that "from the US we have evidence that advertising pays more attention too issues than the TV news media, that it informs the electorate, provides an accurate digest of candidates platforms, can help set the agenda and counteract biased news media, heightens interest, raises money increases turn out and is the most appropriate modern means of doing what politicians have always legitimately tried to do, persuade voters". In the words of Kathleen Jamieson, a US scholar in political communications, "if political advertising did not exist we would have to invent it" (see K.Jamieson, Packaging the Presidency, Oxford 1984, p. 452)

(33)See the note above; and, on this point, T.J Moran, Format Restriction on Televised Political Advertising; Elevating Political Debate Without Suppressing Free Speech, in Indiana Law Journal (1992) p. 665

(34) The expression is borrowed from the decision in the case New York Times v. Sullivan, 376 U.SS 251, 270 (1963).

(35) The Bill was presented at the Chamber of Deputies on 20 February 1995

(36) See Il Sole 24 Ore, 26 January 1995

(37) See the articles in L'Europeo, February 6/13, 1995 ("La "Par Condicio " non ci sarÓ mai, by Massimo Fini); and, for a more general perspective on this point, see G.Gardini, La Disciplina delle Campagne Elettorali, cit p. 166

(38) See the article by Umberto Eco which appeared in La Repubblica 12 May 1995.

(39) After a recent decision of the Corte Costituzionale, the ban on electoral advertising, starting one month before polling day has been repealed . In this case, the Corte Costituzionale had said that the very alternative nature of the question (yes or no) prevents there a distinction between advertising and information, so that, from a legal point of view, it is not possible to allow the first and ban the second. See Corte Costituzionale, sent 10 May 1995, n. 161, published in Gazzetta Ufficiale della Repubblica italiana 12 May 1995.

(40) For a more detailed analysis of the Par Condicio Decree, see E. Bettinelli, Par Condicio. Regole, Opinioni, Fatti, Torino, 1995.

(41) With the important exception of the local broadcasters, who complained that about the reduction of income caused by this provision which cut off a fundamental resource to the detriment of the financial situation of the companies. During the April 1995 campaign , local broadcasting stations suffered a loss between 10 and 15 billion lira due to this provision

(42) Section 10 of the Par Condicio Decree provides the only criteria of proportionality with Parliamentary representation of parties, notwithstanding that the text of the decree presents this as just one of the possible criteria to be adopted for allocating air-time. It uses the adverb "also" to indicate he possibility of different options by the regulatory bodies like the Garante per l'editoria e la radiotelevisione (nowadays AutoritÓ per le garanzie nelle telecomunicazioni) e la Commissione RAI.

(43) For a fuller discussion of the issue, see Australian Capital Television Party v. Commonwealth of Australia, reported in Commonwealth Law Review (1992) 177, p.106

(44) See Il Sole 24 Ore, 19 April 1995

(45) Senator Leopoldo Elia pointed out that during the electoral campaign in the April 1995 elections, the new regional electoral system had not been adequately illustrated by the media. This led to a large number of spoiled votes and created doubts in the electorate. See Acts of Standing Committee on Constitutional Matters at the Chamber of Deputies, 26 April 1995

(46) For a discussion of the selling price of the air-time units during the general elections of March 1994, see La Repubblica, 26 January and 24 February 1994.

(47) See K. Ewing, New Constitutional Restraints in Australia, in Public Law (1992), p. 261 and by the same author, The Legal Regulation of Electoral Campaign Financing in Australia: A Preliminary Study, in University of Western Australia Law Review (1992) 22, p. 256. See also the jurisprudence of the German Constitutional Court mentioned above.

(48) On this point , see Australian Joint Standing Committee on Electoral Matters, Who pays the Piper calls the Tune