Aproximación al régimen jurídico de la propaganda electoral
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Servicio de Publicaciones de la Universidad de Navarra
Díaz Arias, Rafael. ""Aproximación al régimen jurídico de la propaganda electoral"". Persona y Derecho, 5 (1978) : 227-307.
The reason for bringing up this particular topic possibly stems from the continuous contradictions the professional comes across day after day in the Spanish mass communications media during the pre-election phase which the country is going through at the time of this writing. In effect, the press is more and more explicit in its definitions and does not seem to be very willing to remain exquisitely impartial. Television pretends to be operating in accordance witha new phase but the truth of the matter is that it continues to cater to the same people and groups it always has. Our politicians are all trying to outdo each other in order to appear on television, and when they finally do achieve their aim ... they take advantage of the situation to address themselves to their friends using the language and style of a long outdated speech. It is indeed strange that at a time when everybody is interested in the electoral system to be adopted and when the Government and the Opposition are in the process of negotiating the bases of an electoral law, nobody -at least not at this very moment, although it is to be hoped that things will have changed for the better by the time these lines are published- raises the question of setting up new and special control s with regard to electoral propaganda, apart from the demand for the mere access to Spanish television. And precisely in a moment of transition when a new and democratic system is in the process of being established, itis even more necessary ~indispensabl~ to have a clear sét of regulations which would serve to offset the lack of democratic experience and practice. It is clear that in order to come face-to-face with principies of control the first thing to be done is to find out the nature of electoral propaganda and that of propaganda in general, in harmony with the mean s and techniques in use today, Perhaps this particular aspect is discussed too much at length in this work, but the author believes that it is not possible to ignore such techniques as political marketing which is overlooked by all regulations. Once this obstacle has been overcome, the resulting concept can be analyzed in the light of the human and fundamental right to information, and conclusions can be formulated in the form of presuppositions, limitations and requirements. These are -according to the author- the principie gUidelines which must preside over any type of regulation in this field. The fact is that these conclusions were common to generic political propaganda and to that which is properly electoral. Before applying them specifically to the case of electoral propaganda, the author carries out a brief study of Compared Law. After classifying several possible feasible models in accordance with political, juridical and informative conditions, he studies sorne of the most significant cases of the types mentioned. The systems analyzed are those found in England, the United States, France, Italy, Japan and Portugal. The study of the two latter systems are the most extensive due to the fact that we are dealing in these cases with attempts at complete regulation through which the legislators have pretended to create adequate channels in order to make electoral propaganda serve the democracy being restored. In effect, the Japanese law dates from 1950, the various Portuguese laws from 1974, 1975 and 1976; these dates coincide with the implementation of democracy in both systems. For this reason precisely, these countries are especially interesting with regard to the subject matter being analyzed. From the comparison between the general principies derived from the right to information and the reality offered by Compared Law, there arise a series of guidelines for control which are discussed in the last part of the present work. Other solutions can naturally exist, but the author hopes that the ones put forth in this paper can be at least helpful indicators in the setting up of a possible juridical regime with regard to electoral propaganda.
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