Legislative initiative of Georgian National Communication Commission, introduced before the local elections, which among other issues related to the Election Code included responsibility of broadcasters for publication of public opinion polls, reignited debates about legal issues concerning publication of surveys during election campaigns. The legislative initiative related to the attempt of the regulator to strengthen at legislative level the problematic practice established by GNCC concerning the obligation of the broadcasters to verify the trustworthiness and objectiveness of opinion polls.

Unlike the parliamentary elections of 2016, publication of public opinion polls during the 2017 election campaign hasn’t been a subject of active discussions and confrontations. However, Georgian National Communication Commission has issued several protocols of administrative offence to several organizations, including broadcasters and online media publications, and has sent the protocols for further action to respective (city) courts.

Despite the fact that the international practice is familiar with rules and time regulations for publication of public opinion polls, in case of Georgia it is questionable whether even the existing unreasonable legal requirements imposed by GNCC on media are proportional. Especially alarming was the case of GNCC against pro-opposition broadcaster Rustavi 2 about the trustworthiness of a public opinion poll.  

Existing legislation

Georgian National Communication Commission disputed with media requirements outlined in Paragraph 11 of Article 51 of the Election Code - violation of rules regarding publication of public opinion polls, including sub-paragraphs “a”-”e” concerning verification of trustworthiness and objectiveness of results of polls, scientific explanation of difference among various polls or change in results of a poll and etc. However, Paragraph 11 (subparagraphs a-e) doesn’t concern violation of rules of publication of polls. Paragraph 11 (subparagraphs a-e) defines that “for the purposes of this law (Election Code) public opinion poll should comply with following requirements” - so the legislation defines requirements for opinion polls. While sub-paragraphs from “f” onwards define what information a broadcaster needs to include when publishing an opinion poll.

Paragraph 5 of Article 50 of the Election Code also defines rules of publication of public opinion polls:

“During a publication of a public opinion poll concerning elections, following information shall be included:

“Entity that commissioned the public opinion poll (name and legal address, according to public registration or election registration records, if the entity is a legal or state entity; Name, last name and address according to identification card, if the entity is a physical entity), whether the survey was free or paid; organization that conducted the survey (name and legal address according to public registration or election registration), date of the survey, method of the survey, exact formulation of questions used in the survey, margin of error”.

This position is further strengthened by Article 82 of the Election Code, based on which GNCC issues protocols of administrative offence and which stipulates that violation of rules will result in a fine of GEL 1500. The title of Article 82 of the Election Code reads “Violation of rules regarding publication of public opinion polls about elections”, which is then repeated in the dispositional part - “Publication of results of public opinion polls within dates defined by the law without required information or deviation from any other rules regarding publication will result in fine of GEL 1500”

The competence of GNCC over online publications is also problematic and needs further justification. GNCC requires that rules of publication of public opinion polls be followed by broadcasters, as well as, by electronic media. However, the term “electronic media” cannot be found in the Election code or Law on Broadcasting. Unfortunately, court practice regarding this issue doesn’t offer adequate justification.  

Legislative initiative

Prior to the local elections Georgian National Communication Commission introduced a legislative proposal in the Parliament, asking for amendments to the Election Code, including adding Prima Article 11 to Article 51, which would clearly state that broadcaster that commissioned a public opinion poll is obliged to comply with requirements defined in Paragraph 11 (including above-mentioned disputed sub-paragraphs a-e, concerning verification of trustworthiness and objectivity of the public opinion poll), while broadcaster that publishes survey commissioned by another organization would have to follow requirements outlined in sub-paragraph “f” of Paragraph 11.

The legislative initiative clearly indicates that GNCC plans to strengthen legal argument used in already established, disputed legal practice - that requirements defined in sub-paragraphs a-e of Paragraph 11 of Article 51 also apply to a broadcaster that has commissioned a public opinion poll. Additionally, amendments are proposed to Article 82 of the Election Code, which significantly increase the fine for violation of the rules of publication of public opinion poll from GEL 1500 to GEL 5000.

Transparency International Georgia negatively assesses this initiative, this fact is known to GNCC. We believe, that the norm is intended to interfere with content and verification of details of public opinion poll by the regulator is practically impossible and increases risks of a selective approach. The organization that has conducted the survey is responsible for its quality and shifting the responsibility to media is unacceptable.  

The initiated amendment can negatively effect on the participation of citizens in public opinion polls, as there would be a legitimate suspicion, that the regulator might learn about the positions expressed by the participants of the survey and their state support for political parties.

Furthermore, GNCC currently doesn’t have human or professional resources to check trustworthiness or objectivity of public opinion polls.  

The right of media to publish public opinion poll results is guaranteed by European practice. According to the recommendations of Council of Europe, publication of public opinion polls by media can be regulated based on legal or ethical norms. Media has to include name of the entity that commissioned the survey and the organization that conducted the survey, margin of error, period and etc. This recommendation doesn’t mention the requirements that GNCC wants to introduce for media, such as, verifying objectiveness of a survey by media (Article 51, Paragraph 11, sub-paragraphs a-e) and etc.

Transparency International Georgia calls upon GNCC to refrain from imposing unreasonable requirements on media, that would put publication of such surveys and its results by media under threat and would limit access of population to surveys and exit polls of high interest. It is clear that the European practice creates individual requirements for media in regards to publication of public opinion polls, however new practice established in Georgia significantly worsens conditions for media.

Transparency International Georgia calls upon the Parliament of Georgia to suspend hearing of the legislative proposal of GNCC and to hold public hearing with the participation of the interested parties about the possibility to regulate the disputed requirements for publication of public opinion polls through the ethical standards.