2018 Presidential Elections

ISFED Responds to the GNCC Chairman

International Society for Fair Elections and Democracy (ISFED) responds to accusations made by the Georgian National Communications Commission (GNCC) Chairman, Kakha Bekauri during a press conference on September 14.

On September 14, GNCC Chairman Kakha Bekauri held a press conference and attacked ISFED for its report published on September 13, which evaluates imposition of liability by the GNCC on broadcasters to verify credibility of public opinion poll results and consideration of Rustavi 2 case.

Bekauri’s press conference was clearly directed towards discrediting the work of the organization. During the press conference held for attacking ISFED, the chairperson voiced inconsistent, unfounded and senseless allegations. Alongside a range of baseless accusations, during the press conference and in a subsequent press release, Bekauri addressed donors of ISFED and demanded that they reconsider funding of the organization. ISFED assesses the discrediting statements made by Kakha Bekauri as a head of the public administrative body amounts to pressure and an attempt to hamper the work of the organization, which is completely unacceptable and it threatens democratic development.

Based on Bekauri’s statements it is evident that with regard to public opinion polls, he mixed up the report published by ISFED on September 13 with opinions expressed during a discussion on the same date organized by Transparency International – Georgia, in which ISFED representative was not present at all. In addition, with regard to the topic of Rustavi 2, it seems that Kakha Bekauri was talking about the fact of GNCC drawing a protocol of administrative offence against Rustavi 2 in 2017, while ISFED’s report evaluated the August 23, 2018 decision of the GNCC to find Rustavi 2 to be in violation of the law, relying on the minutes of the meeting that ISFED representative attended personally.

Hence, Bekauri’s statement contains multiple factual inaccuracies and circumstances that are unrelated to the report, which makes his accusations frivolous and difficult to confront with arguments.

Nevertheless, we would like to explain to the public why Bekauri’s accusations are inconsistent, baseless and unfounded:

1. On August 15-16, 2018, the GNCC carried out monitoring of Rustavi 2 Broadcasting Company. The monitoring found that the broadcaster aired an advertisement of the political movement European Georgia. During a session held on August 23, 2018, the GNCC’s legal department explained that Rustavi 2 violated Art.50 of the organic law of Georgia – the Election Code of Georgia by airing a pre-election advertisement of the European Georgia.[1]

Notably, initially an internal letter prepared by the GNCC claimed that Rustavi 2 had violated Art.661 of the Law of Georgia on Broadcasting, however during an oral hearing held at a later date on August 23, 2018 members of the Commission changed the legal basis of the claim and found that airing of a political advertisement of the European Georgia by Rustavi 2 amounted to violation of Art.50 of the Election Code. 

ISFED evaluated legitimacy of the decision of the GNCC to find Rustavi 2 to be in violation of art.50 of the Election Code. During the meeting of the Commission, which is also confirmed by the excerpt from minutes of the meeting no.41, dated August 23, 2018, representative of Rustavi 2 demanded that members of the GNCC clarify whether they meant possible violation of art.50 of the Election Code or of the Law of Georgia on Broadcasting. In response, members of the Commission underlined art.50 of the Election Code and afterwards, GNCC Chairman Kakha Bekauri explained that the pre-election period had already begun.[2] During the briefing held on September 14, the GNCC Chairman expressed a different position and explained that at the time of monitoring of Rustavi 2 Broadcasting Company on August 15-16, 2018, the pre-election period had not yet officially begun and he stated the Law of Georgia on Broadcasting as the basis of the decision, which is inconsistent with the statements made by him and other members of the Commission during a meeting on August 23, 2018.[3]

As to art.50 of the Election Code, it regulates coverage of election campaigning by media, while based on para.1 of art.45 of the Code the campaign period officially begins 60 days before the Poling Day. Consequently, art.50 becomes applicable maximum 60 days before the Election Day, and broadcasters become subject to relevant obligations no later than the 50th day before polling.

In this way, the imperative obligation to submit information about airing of a political advertisement is imposed on broadcasters no earlier than on August 29 and definitively on September 8. Subsequently, it is illegal to consider airing of advertisement on August 15-16 within art.50 of the Election Code, which the regulatory authority’s decision is based on.

2. It is also unclear why Bekauri is citing art.661 of the Law of Georgia on Broadcasting, para.1 of which stipulates: “administrative bodies, political parties, officials and public servants may not finance broadcasters, and may not procure their services and finance or co-finance, directly or indirectly, the production of and broadcasting of broadcasters’ programs...” Notably, the said provision is flawed because it imperatively prohibits parties from purchasing services from broadcasters, without providing any exception to allow airing of pre-election advertisement, which runs against art.66 of the same law. In this way, the interpretation of art.661 offered by Bekauri absolutely prohibits airing of political advertisement by a broadcaster, including during pre-election period. This interpretation discriminates against political parties and creates unfair risks of limiting freedom of speech.

3. Bekauri’s accusations related to public opinion polls are also baseless. In its report the organization evaluates as a dangerous precedent the official notice sent to broadcasters by the Commission ordering them to verify credibility of public opinion poll results or otherwise face a fine.

Public opinion polls are very important during electoral period, in terms of coverage of electoral subjects and potential influence on will of voters. The Election Code allows broadcasters to “...recognize as a qualified electoral subject the political party that, according to the public opinion poll conducted throughout the territory of Georgia, has gained not less than 4% of votes in not less than 5 public opinion polls conducted during the election year or in the public opinion poll conducted a month before elections...” In light of this, broadcasters are prohibited from using social research in a discriminatory manner.

In light of the importance of public opinion polls, para.11 of art.51 of the Election Code determines the set of criteria that should be met by a poll before it is used by a broadcaster.

Based on the spirit of the law, organization carrying out polling should be responsible for credibility of the poll and objectivity of results, because this is outside a broadcaster’s expertise and competencies. In addition, none of the provisions of the Election Code stipulate that a broadcaster is responsible for reliability of methodology and credibility of results, even if the broadcaster has commissioned the public opinion poll itself.

Notably, in practice a broadcaster often does not commission a public opinion poll itself when determining qualified electoral subjects but rather, it uses results of polls published by other organizations, e.g. by NDI or IRI. Therefore, it is difficult to imagine that a broadcaster will be responsible for accuracy of public opinion polls published by such organizations.

The 2018 pre-election period is not the first time the GNCC offered such interpretation of the law, however based on the letter sent to broadcasters by the Commission it is clear that if a complaint is made, the Commission plans to order a broadcaster to submit information that proves credibility of public opinion poll results and to hold them responsible for accuracy of the data.

In light of this, imposition of disproportionate responsibility on broadcasters as a result of inaccurate interpretation of the law and setting goals that cannot be achieved in practice creates risks of self-censorship by broadcasters with regard to public opinion polls on the one hand and on the other hand, it provides the GNCC with leverage for selective application of sanctions on broadcasters.

During the press conference on September 14, with the aim of discrediting ISFED Bekauri was accusing the organization of being “unqualified” and “ignorant”, he claimed that the organization was possibly biased and wondered why a fact from what he considered a non-electoral period was included in the pre-election report. It seems that Mr. Bekauri fails to understand possible effects of the GNCC decisions on the electoral environment, which calls his own qualifications into question. Bekauri’s inconsistent statements and mixing of factual circumstances is indicative of lack of professionalism, while claiming that the organization is biased without offering any proof is unfounded, frivolous and unethical.

ISFED calls on the GNCC to recognize its function as an unbiased state entity, respond to criticism by providing arguments and abide by the norms of ethical communication.

The GNCC and its chairmen should have a proper understanding of their role in the election process and they should refrain from attempts to discredit, harass and hamper activities of an observer NGO because such actions call credibility and impartiality of the Commission into question ahead of the presidential election.

[1] See the excerpt from the minutes of the GNCC meeting no.41, dated August 23, 2018

[2] See an exceprt from the minutes of the meeting of the GNCC no.41, dated August 23, 2018, p.4