Reforming Israel's Campaign Advertising Laws

The Knesset Elections Law (Propaganda Methods), which is the main legislation regulating campaign advertising in Israel, was passed in 1959. This law is an anomaly in the reality of media and politics in the 21 century. While it does not seriously address the issue of the Internet, one of the main means of campaign advertising today, it does include a ban on campaign advertising on airplanes and ships. Similarly, it prohibits the broadcasting of “election propaganda” on television and radio during the 60 days before the election, unless it is during the state-authorized slots allocated to each of the parties for campaign advertising. These prohibitions damage normal democratic processes, are difficult to enforce, and are generally no longer appropriate for our times.

This policy paper is intended to propose reforms that will update Israel’s campaign advertising law to suit the reality of media and politics in the digital age. The proposed changes would replace the individual regulations prescribed by law for each media individually with comprehensive legislation that would apply to all forms of media and communications.

Main Recommendations:

1. To cancel the ban on “election propaganda” on television and radio during the 60 days preceding the elections. 
2. To allow political parties and electoral lists to buy television time for political ads toward the end of the campaign.
3. To set a stronger cap on spending on campaign advertising than the ceiling in effect today. This limit will replace many of the restrictions that apply to campaign advertising in the various media today.
4. To define and reduce the Chairman of the Central Elections Committee’s authority to disqualify campaign ads.

The Challenge

The Knesset Elections Law (Propaganda Methods) does not adequately address the online social networks, which are one of the main venues of campaign advertising today. At the same time, however, it is at pains to prohibit campaign advertising on aircrafts or ships.

The law also no longer fulfills its underlying principles. Given the changes that have taken place in the media and political environment, the rigid prohibitions of the law no longer allow the principles or objectives underlying the law to be realized effectively.

This Law is also problematic because of the uneven playing field it creates and its unequal approaches to the various media. It does not apply equal treatment to newspapers, billboards, television and radio broadcasts, and, of course, the Internet, even with regard to identical content. If it is appropriate to guarantee equality and fairness on television and radio, they should also be ensured on the Internet. On the other hand, if the broadcast regulations are overly invasive and identical content is available on the Internet in any case, the superfluous regulations should be abolished.

Our Recommendations

We recommend abolishing the separate regulations currently in force for each medium and replacing them with cross-media regulation that would apply to all of them. Thus, we propose the following measures:

1. Rescind the ban on election propaganda on television and radio during the 60 days preceding the elections. The ban on election propaganda on TV and radio during the 60 days preceding the elections should be abolished. We should instead rely on the general regulations that require fairness in broadcasts. If television channels and radio stations can fulfill the public’s right to be informed and maintain balance, pluralism, credibility, objectivity, and fairness the rest of the year, there is no particular reason for them to stop doing so during an election campaign. If they are not doing so, then the regulators must enforce the rules more strictly.
2. Broadcast free campaign advertising on public channels only. We propose changing the current arrangement that allocates free broadcast time to campaign advertising spots and restricting it to public radio stations and TV channels. Given the changes in the media market, the existing arrangement is unfair to the commercial TV channels. On the one hand, they lose out on the advertising revenue they could have made on the free market; on the other hand, they are not allowed to sell broadcast time to political parties or even civil society organizations (which are deemed to be controversial). The law’s objective will be achieved if we allow campaign advertising spots in their current format only on public TV and radio. Furthermore, electoral lists without deep pockets will still be able to reach voters, without giving undue influence to the economic factor, on the one hand, and without hurting the commercial channels, on the other.
3. Allow electoral lists to buy television time for political ads near the end of the campaign. We recommend allowing lists to buy television time for political ads during the last two weeks of the campaign. This recommendation aims to address the lack of fairness in this matter, given their freedom to insert political advertising in other media outlets, such as the Internet. It is true that campaign advertising in the commercial media is liable to grant undue influence to the wealthy, but this can be averted through supervision and financial restrictions on the lists that buy the advertisements. This arrangement should be subject to the rules that currently regulate campaign advertising spots on local commercial radio stations, with the necessary adjustments.
4. Set a ceiling on campaign advertising expenditures of 30% of a lists’ total permitted expenses during the campaign. This expenditure ceiling would replace many of the restrictions that currently apply to campaign advertising in the various media. We recommend making the legal expenditures ceiling for election propaganda more stringent. This should be the main restriction applied to candidate lists, with no distinction among the various media: television, radio, the press, and the Internet. The expenditures limit will be applied specifically to campaign advertising, as distinct from the restrictions currently in force, which apply to a list’s total expenditures. We propose that the ceiling on campaign advertising expenditures be 30% of a list’s permitted expenses during the campaign. The reason for this relatively low figure (compared to parties' actual expenses in recent campaigns) is that while the parties’ overall expenditure ceiling has been increased (in 1973 and 1994), contributions to the parties have fallen drastically (from 1984 to the present). Today, parties spend up to their permitted ceiling, but well beyond their income—which is based almost exclusively on public funding—and then run into financial difficulties.
5. Implement the binding principle of transparency in all media outlets and identify those responsible for campaign advertising, including political advertisements on TV and the Internet. Today, the Propaganda Methods Law requires identifying those responsible for an advertisement only in the press and on billboards. Because there is no difference among the various media that justifies such a partial and unequal requirement of transparency, we recommend expanding this provision to all media, with no distinction among them.
6. Revoke most of the rules that apply to campaign advertising in the press, printed advertisements, and signs (with the exception of rules intended to protect public safety and the environment) and replace them with a ceiling on campaign advertising expenditures. We recommend rescinding the quantitative restrictions on the size and circulation of advertisements in the press, the limits on the size of advertisements posted on billboards, and the threshold for outdoor advertising. We recommend ensuring the principle of equality through our aforementioned recommendation of imposing an expenditure ceiling for campaign advertising. Those statutory provisions for advertisements and signs whose goal is to protect public safety and the environment, as well as regulations that prohibit discrimination among the lists in outdoor advertising, should remain unchanged. We also propose that outdoor campaign advertising continue to be limited to the parties themselves, and leaving the supervision by the State Comptroller in place.
7. Restrict the discretionary power of the Chairman of the Central Elections Committee to grant advance approval to campaign advertising broadcasts. We recommend a fundamental modification of the powers and broad discretion currently possessed by the Chairman of the Central Elections Committee to give advance approval to campaign advertising spots on television. The courts’ expansion of this provision has effectively given the Chairman of the Central Elections Committee general discretionary power to disqualify election propaganda in all media (including the Internet). This severe infringement of freedom of expression is unjustified and has no clear authorization in the law. We propose curtailing this power by means of a clear statutory definition of the grounds for disqualifying any campaign broadcasts or advertisements. This power would be exercised only when there is no other choice; that is, when the normal remedies provided by law (such as a civil suit for defamation or criminal prosecution for incitement to racism) are insufficient, given the time pressure of an election campaign.
8. Require pollsters who make their findings available to the public at large to include all of the electoral lists. One of the main problems with pre-election polls is the media’s carelessness about including all the electoral lists in the polls, particularly the Arab lists. Because there is no clear stipulation in the Propaganda Methods Law requiring pollsters to include all lists, we believe that the law needs to be amended. We also believe that there should be additional regulations to ensure transparency in the graphical representation of the sampling error in polls, as well specification of other groups (especially partisan ones) with which the pollster or polling firm is involved.

The above changes are necessary to restore the Propaganda Methods Law as an effective defense of its underlying principle: an equal and rich public discourse before the elections. The liberalization we propose in the regulations (revoking the ban on TV propaganda, abolishing the quantitative limitations on advertisements in the press, etc.) should be accompanied by increased stringency in the ceiling on campaign advertising expenditures and a decrease relative to those outlays today. This arrangement is more considerate of the lists and the media. It maintains their freedom but leaves enforcement methods in place, because of the parties’ concern that their public funding will be cut. It is also an appropriate arrangement for implementation and enforcement in the world of digital media.

Dr. Guy Lurie is a researcher at IDI, and a post-doctoral fellow at the Minerva Center for the Rule of Law Under Extreme Conditions at Haifa University. His research focuses on the legal system and the history of public law, the philosophy of public policy, and citizenship.

Dr. Tehilla Shwartz Altshuler is head of IDI’s Media Reform project, and teaches at the The Federmann School of Public Policy and Government at the Hebrew University of Jerusalem. She is an expert on media regulation and open government.