- The plaintiff argues state interference in the organization of a political debate.
- The text below consists of excerpts taken from the court proceedings.
The application concerns a complaint under Article 10 by the applicant company –a private media broadcasting group– about a decision of the Central Electoral Commission not to accept the format of a political debate proposed by the applicant company during the election campaign for the national parliamentary elections in 2019.
The applicant company is a broadcasting and media business group which includes various private television channels, including Antena 3, which broadcasts news and entertainment programmes.
Ahead of the national parliamentary elections on 28 April 2019, the applicant company decided to organise an election debate between five candidates for the office of Prime Minister, which was to be held on 23 April 2019 and televised on Antena 3. Those five candidates represented Partido Popular (PP), Partido Socialista Obrero Español (PSOE), Unidas Podemos (UP), Ciudadanos and Vox.
Prior to the 2019 elections, four out of the five above-mentioned political parties – that is, all except Vox – had secured parliamentary representation in the previous general elections held in June 2016. On 22 April 2019 the public television channel TVE held debates in which only the candidates from PP, PSOE, UP and Ciudadanos participated.
Proceedings before the Central Electoral Commission (CEC)
In the period preceding the elections, three regional political parties participating in the general election campaign (Coalición Canaria, Electoral Coalition Junts and Euzko Alderdi Jeltzalea-Basque Nationalist Party (EAJ-PNV)) lodged complaints with the Central Electoral Commission (“the CEC”), contesting the criteria which the applicant company had applied in selecting the participants in the debate. They asserted that the forthcoming televised debate did not adhere to the principles of pluralism, proportionality, equality and neutrality as set out in section 66(2) of Institutional Law no 5/1985 of 19 June 1985 on the General Electoral System (“the LOREG”) (see paragraph 44 below). They submitted that, unlike Vox, they had secured parliamentary representation in the previous equivalent elections. They further maintained that Vox did not qualify as a significant political group (grupo político significativo) within the meaning of Instruction no. 4/2011 of the CEC of 24 March (see paragraph 47 below). The political parties which had lodged the complaints therefore considered that the inclusion of Vox’s candidate for Prime Minister in the debate, to the exclusion of their own, was contrary to the above principles. They accordingly requested that the applicant company be ordered to either refrain from holding the debate without their participation or give them equivalent compensatory airtime.
In reply, the applicant company stated that the planned five-way debate was clearly informative, given that VOX had secured 10.96% of the votes in the recent elections to the Parliament of Andalusia; was one of the main contenders in the forthcoming general election; had electoral lists throughout the country; and was the fifth-largest political force according to the polls. The company also stated that all the above information was objective and verifiable. It noted that EAJ-PNV was expected to receive fewer votes than Vox, according to the CIS survey, and that, unlike Vox, it had candidates only in certain provinces, while the debate was to be broadcast throughout the entire country. Vox could therefore be considered a relevant and significant political group for the purposes of the LOREG. The company also stated that it was willing to offer airtime to the regional political parties which had complained. In particular, it pointed out that a debate was scheduled to take place on 20 April 2019 as part of the programme “La Sexta Noche”, in which representatives of the parties that had secured political representation in the previous general elections, including the complainants, had been invited to participate. The company also listed other programmes in which the representatives of the parties that had complained would be given an opportunity to appear. The applicant company therefore argued that those parties would receive sufficient airtime. Lastly, it emphasised its unwavering respect for the principles of pluralism, equality, proportionality and neutrality, by which it had always abided, in full compliance with the LOREG and the Instructions of the CEC.
By a single decision of 16 April 2019 the CEC allowed the three complaints. Having reiterated the content of section 66(2) of the LOREG, it noted that under Article 8 of Instruction no. 4/2021, adopted to implement it, where a private television broadcaster organised or broadcast electoral interviews or debates, it should have particular regard to the results obtained by each political formation in the previous equivalent elections. According to the CEC, the criterion of proportionality “[did] not prevent the provision of information concerning [parties] which had not participated in or secured representation in the previous elections; however, it [did] determine that [those who had not secured representation] could not receive more airtime than political formations which had secured representation in the previous elections”. It stressed that it was bound by the relevant criteria, which could not be substituted by other criteria, such as the news in question supposedly being topical, or opinion poll data.
Turning to the proposed debate, the CEC found that there could be “no objection to the participation” of representatives from PP, PSOE, UP and Ciudadanos, as they had secured the most parliamentary representation and the highest number of votes in the most recent elections to the Congress of Deputies held in 2016. However, that did not apply to Vox, as it had not secured parliamentary representation and had received 0.1% of the votes in those elections. Conversely, the political parties which had complained had secured parliamentary representation and a higher percentage of valid votes – factors which were relevant to “the legally established criteria for applying the principle of proportionality to election debates and interviews”.
The CEC further found that Vox did not meet the criteria of “a significant political group” for the purposes of section 4 (2.3) of Instruction no. 2/2011 (see paragraph 47 below) either, as it had not received 5% or more of the valid votes cast. The CEC acknowledged that Vox had received 10.96% of the valid votes cast in the recent elections to the Parliament of Andalusia, which would entitle it to such status in Andalusia. However, the disputed debate was to be held at national level, and Vox had not received 5% of the valid votes cast and could therefore not be regarded as a significant political group at that level.
Lastly, the CEC was unable to accept the applicant company’s argument that it had proposed to organise a debate on 20 April 2019 in which Vox would not take part because “the proportionality principle [had] been given priority”. The CEC noted that section 66(2) of the LOREG did not provide for the voluntary application of the principle of proportionality, but imposed it unconditionally. There was no scope for privately owned broadcasters to exercise discretion in applying the principle of proportionality to debates of their choice; it was to be applied to all debates organised during the electoral process.
The CEC concluded as follows:
It follows from the foregoing that the [complaints by the three political parties] must be upheld and that the five-candidate debate proposed by [the applicant company] runs counter to the principle of proportionality, which must be respected by private television broadcasters during election periods, as set out in section 66(2) of the LOREG. Consequently, that debate cannot be held under the terms indicated; instead, if the broadcaster so decides, it must be modified to comply with the requirements of that principle.”
The applicant company argued that the CEC’s decision had amounted to a binding prohibition on the five‑party debate, and characterised the interference as a prior restraint imposed during an election campaign.
The applicant company further argued that the interference had not been necessary in a democratic society, as no pressing social need had been shown. Televised debates were a protected form of political expression.
The Court’s assessment
Existence of the interference with the applicant company’s Article 10 rights
Article 10 of the Convention applies not only to the content of information but also to the means of dissemination, since any restriction imposed on the latter necessarily interferes with the right to receive and impart information. The Court has repeatedly recognised the vital role of the media in facilitating and fostering the public’s right to receive and impart information and ideas.
As the circumstances of the case relate to the parliamentary elections and the “choice of the legislature” was at stake, the Court finds it appropriate to consider the applicant company’s complaint under Article 10 of the Convention in the light of Article 3 of Protocol No. 1 thereto.
The applicant company’s argument as to the lawfulness of the impugned interference rests primarily on its contention that in the given context, the term “law” should be understood as referring exclusively to an Act of Parliament (in this case, the LOREG), whilst the norms applied in its case were a combination of primary and secondary legislation. The Court is unable to accept that argument, as the term “law” as it appears in the phrases “in accordance with the law” and “prescribed by law” in Articles 8 to 11 of the Convention is to be understood in its “substantive” sense, not its “formal” one.
The Court observes that the rules relied upon by the CEC were designed to ensure neutrality in election coverage and equality between political competitors during the election period, which are central elements of democratic elections. In the Court’s view, such considerations are closely linked to the protection of the rights of others and the proper functioning of the democratic electoral process. The Court therefore considers that the interference pursued the legitimate aim of protecting the rights of others within the meaning of Article 10 § 2 of the Convention.
However, although the press must not overstep certain bounds, their duty is nevertheless to impart – in a manner consistent with their obligations and responsibilities – information and ideas on all matters of public interest. Not only do the media have the task of imparting such information and ideas, but the public also has a right to receive them.
In sum, the Court has had regard to the nature of the criteria applied, the fact that the intervention by the electoral authority responded to complaints raised by other political actors, the availability of alternative formats which were compatible with domestic law, and the margin of appreciation enjoyed by the State in regulating electoral processes and media coverage during election campaigns. It considers that the interference complained of was supported by relevant and sufficient reasons, was proportionate to the legitimate aim pursued and was therefore “necessary in a democratic society”.
There has accordingly been no violation of Article 10 of the Convention.
Note: This is a summary of the full text of the Court’s decision, which can be viewed in its entirety HERE.