Media is an important component of the election process in any democratic country. The new Law on Media had provisions regulating the information space during elections.
However, on December, 13, the Verkhovna Rada supported the compromise decision and voted for the law that had all the provisions on amendments to the Election Code removed.
According to Yevheniia Kravchuk, Deputy Head of the Parliamentary Committee on Humanitarian and Information Policy, this was a pre-requisite for giving votes for the Law on Media from two parliamentary factions, such as the "European Solidarity" and "Batkivshchyna".
The politician also promised that this week, she and her colleagues supporting the changes to the electoral law will register a separate draft law.
We hope so. After all, one of the important provisions contained in the document that passed the first reading is the deletion of the so-called "days of silence." In other words, it is the ban on campaigning the day before the election on the voting day. However, there is a high probability that the amendments on the abolition of the "day of silence" will disappear from the final version of the amendments to the Electoral Code.
In Ukraine, a "day of silence" (ban on campaigning on the day before the elections and on the voting day) was introduced in 1989, and throughout the 30-year existence of this provision, most of the participants in the election process violated it.
Due to the growing popularity of online campaigning in recent years, this trend has only intensified.
Earlier, OPORA has repeatedly explained why the day of silence is an outdated phenomenon and does not take into account the current realities of the election process.
In this column, we will focus on the extent to which parties and candidates observed a "day of silence" during the three recent election campaigns, and whether a "day of silence" is really an important safeguard against election tampering.
You can take a closer look at the table here.
What is a day of silence?
Although "day of silence" is quite common, it is not known where and when it was first used during the election process. The reason for its introduction is simple: voters have the opportunity to make a balanced decision without additional pressure in the information field, and the level of tension in society is reduced after a busy campaigning period.
Besides political campaigning, many countries also prohibit publication of candidate ratings and unofficial exit polls before the closure of polling stations (to reduce the impact on voters).
At the same time, the "day of silence" is a practice that was inherited from the Ukrainian electoral legislation from the Ukrainian SSR. Since 1989, Soviet Ukraine has banned campaigning directly on election day (Article 41 of the Law on Elections of People's Deputies of the Ukrainian Soviet Socialist Republic). The same restrictions persisted in the laws on the elections in Ukraine that has already gained independence (1993 and HYPERLINK "https://zakon.rada.gov.ua/laws/show/541/97-%D0%B2%D1%80" \l "Text" \t "_blank" 1997).
The two-day ban on campaigning appeared for the first time in 2001 in the Law of Ukraine on Elections of People's Deputies of Ukraine, and was finally enshrined in the Electoral Code. The latter establishes that the so-called "days of silence" begin "at 24 o'clock on the last Friday preceding the election day or the day of the second round of voting."
From this moment on, it is forbidden to:
- publish campaigning materials in mass media;
- distribute election leaflets;
- put up election posters;
- publicly call for voting for or against candidates or parties;
- distribute political advertising.
However, the real situation around the "day of silence" in Ukraine is still somewhat different from the one defined in the Electoral Code.
First Robins: Presidential Elections
The 2019 presidential campaign was in fact the first case of mass use of social networks as a full-fledged platform for campaigning in Ukraine. In 2019, most Ukrainian users concentrated around Facebook, Instagram, Viber and YouTube, and presidential candidates used these social networks for campaigning. In order to assess the extent of violations, we have consulted the Facebook Political Ads Library (available here).
Starting from December, 31, 2018 to April, 22, 2019, the Facebook Library of Political Ads received 10,634 promoted posts, ≈15% of which were published on the days of silence on March, 30-31 and April, 20-21. During those days, OPORA detected an advertising campaign for 7 of 39 presidential candidates who shared their campaigning on 10 Facebook pages.
The current President of Ukraine, Volodymyr Zelensky, was the most active violator of electoral legislation. The Zelensky's team page, that posted campaigning in his support, published 1,338 posts during these two days – 98% of all ads published by presidential candidates in the "days of silence".
Besides Volodymyr Zelensky, six of his competitors were detected: Anatolii Hrytsenko, Oleh Liashko, Petro Poroshenko, Yuliia Tymoshenko, Oleksandr Shevchenko, and Yurii Boiko. Their advertising campaigns, although much smaller in volume, still violated the electoral legislation.
Other presidential candidates refrained from using advertising on social networks in the days of silence.
Taking Root: Parliamentary Elections
After the presidential campaign was a success for a virtually single candidate who seriously used online campaigning tools, politicians and political forces began to see Facebook and Instagram as an important channels to promote themselves. Therefore, it is quite expected that in the summer of 2019, when early parliamentary elections were held in Ukraine, the number of advertising posts violating the "days of silence" was higher, and reached a much wider audience.
In total, on the "days of silence" on July 20-21, 2019, we counted at least 1,836 promoted posts shared from 103 Facebook pages. Of the 22 political forces running for the parliamentary elections, 13 violated the ban on campaigning during the "days of silence".
It is quite revealing that pro-Russian political forces (the Opposition Platform – For Life, and the Shariy Party) most blatantly ignored the "days of silence". Taken together, they published 67% of all campaigning during these days. Besides that, many posts were shared by party pages and pages of candidates from the Servant of the People party – about 24%.
Other political forces posted fewer ads but still violated the electoral legislation.
Blossom: Local Elections
However, breaking the silence days rule became the most common practice during the 2020 local elections. At least 54 of 114 political parties running for elections actively campaigned on their Facebook and Instagram pages. In the "days of silence" of the main election campaign (24-25 October 2020), not including campaigning during the "second rounds", OPORA detected at least 1,448 advertising posts.
For campaigning, political forces and candidates used an unprecedented number of pages – 341, dispersing their promotion campaign.
Once again, the Servant of the People party was the most active – it was supported by 51 pages, where 295 promoted posts were published.
New political forces ("For the Future", "Ukrainian Strategy of Groisman", etc.) also violated the "day of silence" rules.
In the end, in these elections, most political forces refrained from violating the "days of silence".
Conclusion-wise: does Ukraine need a day of silence?
OPORA has previously written that the "day of silence" is an optional practice, as a matter of fact. Moreover, it is absent in many democratic countries (e.g., in the USA or Germany).
But the regulation for the "day of silence" in Ukraine is getting increasingly more difficult with every year: now, it is necessary to monitor the spread of political advertising not only on television, radio or billboards, but also in the online space.
Given that after the start of the full-scale war, more than 60% of citizens have been using the Internet for information updates, it will become a center of campaigning in the next elections, while further tracking and punishment of violators is unlikely to happen.
In addition, at the moment, it is virtually impossible to track violations of the "day of silence" in messengers like Viber or Telegram, and in more "closed" social networks (such as YouTube).
Moreover, nowadays Ukraine does not have a regulator who would track and punish those who campaign on the "days of silence". Rule-breakers remain unpunished, which encourages them to increasingly use prohibited campaigning. In fact, one should not be comforted by the hope that the observance of the "day of silence" could be settled in the near future, not only in Ukraine but even in the United States.
Although it is not yet possible to track and punish the rule-breakers, many politicians and political forces used campaigning on the "days of silence" for their campaigns. Therefore, MPs are very likely to keep a ban on campaigning on the election day and on the eve of the election – with a view to the next election campaign.
According to OPORA, the practice of a day of silence is exhausted and is actually a fictitious rule in electoral law. When honest candidates decide not to violate the current legislation and finish their campaigning two days before the voting, less responsible candidates and parties ignore the restrictions and promote themselves on social networks.
The Ukrainian government is not able to ensure the observance of the "day of silence." This is the reason why at this stage we should abandon this practice. \
In our opinion, Ukrainian legislation should be vibrant and effective, rather than represent a set of "dead" provisions.