Under the Broadcasting Services Act 1992 (BSA), no political advertising is allowed on television or radio during the three days prior to an election. This time is described in the legislation as the relevant period, and is commonly referred to as the blackout period.
Since 1992, the rise of new technology has seen communication platforms evolve. This includes websites, social media, streaming services, robocalls and SMS/MMS notifications. Australians now have more options for consuming information and entertainment beyond heritage media – television, print and radio. However, the BSA only limits political advertising on television and radio during the blackout.
This issue has been previously explored by the Joint Standing Committee on Electoral Matters (JSCEM). In the Report on the conduct of the 2016 federal election and matters related thereto the Chair’s foreword stated:
A matter for future consideration by this Committee is the issue of political advertising blackouts during election periods. The current rules lack consistency, and favour by default, rather than design, online media platforms over more traditional media formats.
In the Inquiry into and report on all aspects of the conduct of the 2013 Federal Election and matters related thereto the JSCEM recommended that ‘the Australian Government examine the future viability of the broadcast media blackout.’
In this current inquiry, the JSCEM took evidence further exploring:
the relevance of blackout rules in the age of digital publishing;
whether the rules should be scrapped, or extended;
the burden of regulation on traditional media; and
the intersection between a rise in pre-poll voting and the relevant period.
The purpose of the blackout
The blackout period ‘applies to general elections and by-elections for the state, territory and federal Parliaments. It does not apply to local government elections.’
The Australian Electoral Commission (AEC) explain:
Under Schedule 2 to the Broadcasting Services Act 1992, there is an election advertising blackout on all electronic media from the end of the Wednesday before polling day to the end of polling on the Saturday. This three-day blackout effectively provides a ‘cooling off’ period in the lead up to polling day, during which political parties, candidates and others are no longer able to purchase time on television and radio to broadcast political advertising.
The ‘cooling off’ function, including comparisons with similar legislation in other jurisdictions, has been discussed in previous JSCEM reports.
The blackout does not apply to online services such as social media platforms or the print media who can still publish election advertising during the blackout period.
The Australian Communications and Media Authority (ACMA) administer the electronic media blackout provisions and other provisions relating to the broadcasting of ‘political matter’.
Redundant or need to strengthen
The JSCEM took evidence from heritage media organisations – including Commercial Radio Australia and Free TV Australia - government agencies Australian Competition and Consumer Commission (ACCC) and ACMA - and digital platforms including Facebook and Twitter.
There were two clear arguments. That the blackout laws are redundant and need to be done away with. Or, that the threat of disinformation campaigns is now so great blackout laws need to be extended to all types of media.
Commenting on the redundancy of the blackout, Ms Clare O’Neil, Director Corporate Affairs, Special Broadcast Service (SBS) said:
It no longer seems to be a relevant regulatory intervention, given the proliferation of other forms of advertising in the days leading up to an election. It just doesn't seem to make sense anymore that television and radio are the only ones that are subject to a ban on election advertising, when you could go onto the Sydney Morning Herald website, for example, and get a full-page ad the day before the election.
Ms O’Neil elaborated, saying the official position of the broadcaster was that the blackout lacked significance in the context of digital platforms:
Our position is that the blackout applying to only some forms of media is no longer a relevant intervention, and the difficulty in regulating digital platforms in advertising would lend itself to a suggestion that the blackout itself is probably no longer a relevant public policy intervention across all media.
The Australian Broadcasting Corporation (ABC) shared this position, saying:
Our view is that we understand the point of the blackout but … it doesn't reflect the reality of the digital world we all live in now. I would suggest that it should be applied universally…. If it can't be applied universally, I think the position ought to be that a partial blackout—that is, a blackout that currently just impacts radio and TV broadcasts—isn't effective.
Ms Bridget Fair, CEO , Free TV Australia provided another example of the inconsistency between the blackout affecting television and radio but not other platforms, saying:
The rules were intended to prevent last-minute claims from candidates, with little time for correction or rebuttal. But, as is obvious to anyone accessing a social media account in the lead-up to an election, this rule does not apply to advertising online during the same period or, indeed, to other platforms such as newspapers or outdoor. In fact, political parties now regularly send out fundraising calls, which are expressly stated to cover the cost of digital advertising during the blackout period.
However, several submitters called for the blackout laws to be extended to include digital platforms and streaming services.
News and Media Research Centre, University of Canberra submitted:
A social media blackout could mitigate the influence on voting of some of the risk of online ‘scare campaigns’ and unverified news in the final hours of the campaign, and go some way to protecting more vulnerable members of the community and introduce consistency across all news media platforms.
Responsible Technology Australia put:
These restrictions are in place on all forms of heritage media (television, radio and print) to give a grace period for Australians to decide how they will cast their vote. These laws however, carry little effect as the digital platforms are exempt, meaning that political advertising continues unabated across all social media channels during elections. By having a cohesive approach to regulation, this will ensure that the original intentions of the advertising ban are upheld.
Responsible Technology Australia advocated for an extension of the blackout to all platforms, but also noted the nature of advertising on digital platforms was inherently different to television and radio:
… the difference between the political advertising that happens on traditional mediums is significant and shouldn't be underappreciated in that social media targeting is extremely targeted—it's hyper targeted—which means that it's very difficult for any of us to see what someone else has been targeted with, whereas on traditional platforms, traditional advertising and channels there are systems of accountability as well as the public nature of those channels which make it more easy to assess what's being paid and pushed to people. So if you're going to apply those political advertising blackout laws across to social media you probably actually need to think about going further than that because the nature of that advertising is so much more specific and so much more secretive and opaque.
Commenting on how high social media users are already more informed voters, The Voter Choice Project argued the original intent of the BSA has been lost - as late deciding voters still get their information from commercial broadcasters:
This raises a conundrum: the broadcast blackout, implemented before social media existed, apparently aims to stop overload and give voters a chance to ‘cool off’. While many do appreciate the blackout, in the current context, all it does is deny information to those very late deciding voters who are likely to get most of their information from commercial broadcasters, and deny revenue to commercial broadcasters. High social media users are the most informed, so blanket advertising on social media in the last three days is a waste of money; where those ads need to be to inform those who want to be informed is on the one medium they are banned.
The JSCEM also heard from digital platforms – and the measures they are taking to reduce misinformation and disinformation in both advertising and organic content. This is discussed further in Chapter 4.
Facebook told the JSCEM that although it is not subject to the blackout period legislation Facebook would support the extension of such rules to online advertising. Policy Manager, Mr Josh Machin said:
… in relation to the Australian regulation about a blackout on electoral advertising, we have taken the position in previous inquiries to indicate that, if Australian policymakers consider that the blackout on electoral advertising remains the right policy approach, we would be very supportive of extending that to online advertising to ensure parity between those media advertising that are currently captured and those that currently aren't.
Since its initial submission to the inquiry Twitter announced a global ban on political advertising. Coming into effect in late 2019, the ban is on paid advertising not organic content. The Twitter policy website states:
We define political content as content that references a candidate, political party, elected or appointed government official, election, referendum, ballot measure, legislation, regulation, directive, or judicial outcome.
Ads that contain references to political content, including appeals for votes, solicitations of financial support, and advocacy for or against any of the above-listed types of political content, are prohibited under this policy.
We also do not allow ads of any type by candidates, political parties, or elected or appointed government officials.
The reality of trying to extend the blackout provisions to ever-evolving digital platforms was addressed by the News and Media Research Centre, University of Canberra.
Dr Mike Jensen submitted that a blackout on paid advertising may not be enough to create a ‘cooling off’ period:
One thing that concerns me is that even in the absence of advertising, malign actors (foreign or domestic) can promote deceptive and manipulative communications during the blackout period. This can be amplified with bots and human “troll” actors. Paid advertisements can be a way to reach a large audience quickly and respond to such manipulation. While politicians can go on television or the radio, many people are not politically interested and will never see that content. Meanwhile, content can be covertly distributed through non-political, “third spaces”, and campaigns have little ability to respond and counter this activity.
Free TV Australia and Commercial Radio Australia highlighted that the regulatory burden of the blackout laws made advertising on traditional platforms expensive, driving political advertising to other mediums.
Commercial Radio Australia has always held the position that the blackout laws should be removed – as they disadvantage commercial broadcasters. Head of Legal and Regulatory Affairs, Mrs Sarah Kruger told the JSCEM:
The current blackout rules were enacted in 1992, several years before internet access became commonplace. There is no equivalent to the blackout rules in place for media other than commercial television and radio. Political parties are free to advertise in print and online at any time they like. This places commercial broadcasters at a significant disadvantage as advertisers place their content on alternative platforms, particularly online. There is no logical reason for the blackout still to be in place. The discrepancy in the rules applicable to old and new media, or existing and new media, make the blackout rule ineffective. Listeners are inundated with political advertising from other sources, particularly social media throughout the blackout period, and voters are surrounded by readily accessible political advertising on all other platforms.
Television broadcasters said they face the same disadvantage as commercial radio – as neither can benefit from advertising revenue during the blackout. Ms Bridget Fair, CEO of Free TV Australia explained:
… there are rules that prevent people from spending money on television and, therefore, encourage people, to the extent that they are spending money, to spend it on other platforms.
In 2019, the ACCC completed the Digital Platforms Inquiry. The Government response to this has sought to encourage the harmonisation of regulation between different platforms. Where electoral and political advertising sits in this emerging framework is unclear.
When discussing if television or radio had more influence or power compared to digital platforms the ACMA submitted that they had ‘not undertaken any work, specifically, to examine the relative degree of influence of content platforms in terms of the election blackout laws.’
ACMA Deputy Chair and CEO Ms Creina Chapman told the JSCEM ‘It's certainly safe to say that, under the current framework of only considering some parts of the media, it is not necessarily fit for purpose going forward’.
When discussing the competition comparison between commercial radio and television broadcasters, and digital platforms in relation to the blackout and authorisation of electoral and political advertising, ACCC Chair Mr Rod Sims said:
We certainly felt that there were, in some cases, quite prescriptive regulations on media businesses and, in essence, no real regulation of platforms. In one sense, that's not surprising. The platforms are very new businesses, and, I guess, regulation probably hasn't kept up with them. Of course, the platforms don't want any regulation. But we did have numerous examples given to us by TV companies and radio companies that people would approach them with ads, and they had to go through a whole lot of procedures and potentially disclaimers on ads, even if they weren't political ads, that the platforms didn't have to do. The media businesses did give us a number of examples. This is some time ago, but there was an impressive number of examples where they had ads that were going to be shown on TV or radio but that, in the end, went on the platforms because it was much easier—the platforms didn't have to go through the regulatory hoops that they did. The government certainly picked up our recommendation to equalise that regulation. Whether that means less regulation on TV and radio or, on the other hand, more regulation on platforms, I don't know. But it does seem anomalous that a TV company can't show ads on the same basis that, say, Google could take for YouTube, for example. We agree very much that there's a problem, and the government has a committee working to solve that problem by trying to harmonise the regulations. It's not easy. It won't happen quickly. But we certainly think there is a serious problem there, a serious imbalance.
Mr Sims went on to make the connection between the current blackout laws disadvantaging commercial television and radio broadcasters – driving advertisers to digital platforms, where consumers are at greater risk of disinformation and misinformation:
In essence, digital platforms don't face any regulation, whereas media businesses do. The best example of that is TV and radio going into blackout prior to any election. The digital platforms can still take ads, including on their YouTube channels and things of that ilk, and that's quite a profitable time for them. The government's accepted our recommendation to try and harmonise regulations between digital platforms and media companies. The second point is that we found that consumers who are getting their news through digital platforms are at greater risk of exposure to unreliable news, be it deliberately unreliable, which we call disinformation, or not deliberately so but still misleading, and we call that misinformation. There's also the fact that the algorithms that are used by the platforms tend towards feeding you what you want to know. They can become echo chambers rather than giving you a diversity of opinions.
The threat of misinformation and disinformation, and measures to mitigate this risk is discussed further in Chapter 6.
Blackout period and pre-poll
As discussed in Chapter 3, more Australians are choosing to vote early. In the 2019 election more than 40 per cent of votes cast were pre-poll.
With a nearly three week polling window, the JSCEM received evidence about the effectiveness of a ‘cooling off’ period when so many have already voted.
Professor George Williams AO put:
Most of the 2019 election campaign overlapped with pre-poll voting. This is unsatisfactory, and the campaign may need to be lengthened to ensure that candidates and parties can explain their policies and make announcements before pre-polling begins. The blackout on election advertising on television and radio immediately before election day should also be re-examined. It makes little sense to impose the blackout after millions of voters have already made their choice.
It is clear that Australians are not reliant on television and radio for electoral and political information in the same way they were in 1992.
The combination of the rise of smartphone technology, broadband internet and Wi-Fi means Australians are increasingly connected and online. The 24hour news cycle means audiences expect information around the clock. No longer passive news consumers, audiences can also seek out information through search engines and engage with others in political ideas in online forums.
The blackout provisions in the BSA are clearly no longer fit for purpose. The JSCEM retains its position as per the Inquiry into and report on all aspects of the conduct of the 2013 Federal Election and matters related thereto where it recommended an examination of the ‘future viability of the broadcast media blackout’.
However, the JSCEM notes the enormous body of work recently undertaken by the government in relation to regulation harmonisation across platforms via the 2019 ACCC Digital Platforms Inquiry and its subsequent government response.
The JSCEM recognises that electoral and political advertising is just one element to be considered in this complex area.
Misinformation and disinformation remain a serious threat that can undermine electoral integrity. The JSCEM notes the intersection between Australian’s growing reliance on digital platforms, the quality of information found on such services and how interference can manipulate voters.
The question is not whether there should more regulation, but rather how regulation can work when digital platforms continue to rapidly evolve.
The JSCEM notes that the ACMA and the ACCC are currently working in this space with broadcasters and digital platforms and plan to have new code of conduct in 2021. However, this code of conduct is unlikely to have the same impact as legislation and the BSA will remain in its current form. This will continue to put Australian companies – commercial television and radio operators – at a disadvantage.
Legislative change will be required to remove the burden on commercial television and radio broadcasters. But any new form of regulation – that includes all broadcasters and platforms – needs to take into account how technology continues to evolve and how audiences consume and engage with information. The JSCEM believes better communication through the key agencies responsible for this space could be an effective way of ensuring political and electoral advertising is properly addressed in the emerging regulatory framework.
The JSCEM also notes the growing trend in early voting, and with COVID-19 social distancing restrictions in place for the foreseeable future pre-poll may even be encouraged in future elections as a public health measure. In that case, preventing the release of new information may have a minimal impact as most people may have already voted. However, such conditions may not be in place forever, and any legislative change needs to allow for flexibility whilst meeting the original intent of a ‘cooling off’ period before voting.
The Committee recommends that the media blackout, known as the relevant period in the Broadcasting Services Act 1992 be reviewed with a view that the restrictions on commercial radio and television broadcasters be removed.
The Committee recommends that the current work of the Australian Competition and Consumer Commission and the Australian Communications and Media Authority to adapt regulation so it can keep pace with technological change, clearly addresses electoral and political advertising. It also recommends these agencies form a working group with the Australian Electoral Commission and other key stakeholders to ensure this important area is addressed as a priority.