Модуль 5. Правовые вопросы и масс-медиа


Gergana Yankova-Dimova

(Great Britain, Cambridge University)

Political scandals have become so common that people accepted them as an integral part of contemporary political life. It is precisely this predominance that makes scandals an important object of academic inquiry. This paper analyzes systematically and critically the phenomenon of a contemporary media scandal dealing with political accusations of high-ranking government officials. The study raises the questions under what conditions do these parties decide to voice publicly their discontent with the incumbents?
The article points out that media critics always consider not only the benefits of publicly accusing an incumbent, but also the costs. This discussion addresses the exclusive preoccupation of the literature with the costs of making an accusation. It is generally considered that scandals occur whenever the media can profit financially from sensationalism and the politicians can gain symbolic capital by besmirching their opponents. I suggest that several institutional as well as random factors, such as the laws for classified information and any concomitant scandals, affect the decision to make a public charge at an incumbent. The review of the existing literature on the emergence of scandals is tested against some evidence from scandals in Germany, Bulgaria and Russia in the period between 1992 and 2005.
Which Conditions Enable the Emergence of Scandalous Allegations against the Government?
Accusers do not reveal scandalous allegations about the government every time they are displeased with it. Thus it is important to gauge the causal factors that shape the individual decision of each accuser to publicize his or her allegations. Students of scandals focus mainly on the benefits of making allegations. It is generally agreed that allegations emerge when the media see an opportunity for commercial gain and the politicians - for political gain. The costs of making allegations are much less discussed in the literature. While the monetary and symbolic benefits are of utmost importance, I suggest that at each point, the decision whether to reveal scandalous allegations depends on the perceived costs as well. These factors are of various natures (listed in Table 1). Some of these factors are institutional, such as the strength of journalistic associations and the authority of the secret services. Other costs are legal, such as the defamation laws and the laws for public information. Yet another group of factors is informal, such as an implicit consensus between the politicians and the media about revealing matters of private discretion.
The point is that different groups have different capacity to overcome the costs of making an allegation. It is possible as well that the very costs and benefits of raising a criticism are constructed differently in countries with different democratic potential. For example, the symbolic power of political parties is more important in a democracy than in a non-democracy because democracies are more reliant on elections, where political capital is crucial. Consequently, the benefits of making an accusation would be bigger in democratic countries. To take another example, we would also expect that journalistic associations in democratic would be better equipped to fend off the attacks of insulted incumbents than journalists in more authoritarian regimes. These considerations do not mean that scandals occur in democracies only, but that the opportunities to start scandals, and the capacity of different groups to use these opportunities in countries with various levels of democratic development.
The Established View: Benefits of Making Public Accusations against the Government
The dominant paradigm posits that scandalous allegations appear because the media are commercialized. Scandal mongering is deemed to meet a public demand for sensationalism, which, when met, can increase circulation and profits. Moncrieff (Moncrieff, 2006: 75-76) argues that “most newspapers regard themselves as being part of the entertainment industry and editors would probably earn more respect if they admitted that their inquiries were aimed not so much at performing a public service, as producing a humdinger of a story adding thousands of circulation”. Thompson (Thompson, 2000: 78) also underscores the connection between the commercial nature of the media market and the drive towards sensationalism, “given the economic incentives which shape media organizations as commercial concerns, it is hardly surprising that some media organizations have sought to produce symbolic goods which have a sensationalist, attention grabbing character”.
Garrard (Garrard, 2006: 23) says that “scandals … sell newspapers and thereby indirectly attract advertising revenue”. Lull and Hinerman argue that self-financed media outlets need shocking stories to draw large audiences, and consequently, to attract lucrative advertisers (Lull, Hinerman, 1997: 234). “As commercial enterprises, newspapers, magazines and most other media organizations, have a financial interest in maintaining and increasing the sale of their products, and scandals provide vivid, racy stories that can help splendidly to achieve this aim; in short, scandal sells” (Moncrieff, 2006: 49). Moncrieff (Moncrieff, 2006: 75-76) further argues that “most newspapers regard themselves as being part of the entertainment industry and editors would probably earn more respect if they admitted that their inquiries were aimed not so much at performing a public service, as producing a humdinger of a story adding thousands of circulation”.
Political gain is considered to be the other motivation for incriminating government ministers. The most obvious political gain for non-governmental accusers is the resignation of the alleged minister or to the reversal of a disputed policy. Apart from actual dismissals, allegations can affect the reputation of the alleged politician. Scandals are perceived as struggles for political capital. According to Bourdieu (Bourdieu, 1999), symbolic capital, which includes such notions as prestige, honor and the right to be listened to is a crucial source of power. Kane (Kane, 2001: 2) applies Bourdieu’s idea of symbolic capital to politics. He argues that “reputation inevitably represents a resource for political agents, one that… enables political processes, supports political contestants and creates political opportunities”. Ginsberg and Shefter (Ginsberg, Shefter, 1999) contend that scandals are a symbolic form of politics that have spread because institutional forms of political competition, such as elections, have weakened.
Scandals can affect the political capital of alleged politicians both positively and negatively. In most cases, allegations can cause enormous reputational damage. This view is best expressed by Thompson (Thompson, 2000: 103): “Scandal (or the threat of scandal) has such significance in the political field because it can destroy (or threaten to destroy) a vital source upon which the power of political representatives depends- namely, their reputation and good name, and the respect accorded to them by other politicians and the public at large. To destroy or damage their reputation is to destroy or damage their credibility, and thereby to weaken or undermine their capacity to persuade or influence the others, to secure a bond of trust and to turn their words into deeds”.
The New Perspective: Costs of Making Public Accusations against the Government
While the benefits of making accusations are largely acknowledged in the literature, there is very little discussion about the potential costs. Accusations are not a one-way street to political capital leading from the accuser to the accused government member. Allegations often backfire, and that can cost the accuser. The costs range from monetary fines through loss of reputation to loss of life. I suggest that these costs are determined by five main factors: politicization of the private lives of the politicians, defamation laws, laws for classified information, the strength of journalistic associations and the importance of secret services. I will address each one here in this order.
Scandal Costs: Politicization of the Private Lives of Politicians
One determinant of the costs of making media accusations are tacit, informal media practices regarding private indiscretions of government members. The more the media believe that it is improper to infringe on the personal space of public figures, the more costly it is for different actors to make private allegations in the media space. Surprisingly, the costs of media intrusion have been lowered by the politicians themselves. This has been a conscious move on the part of power-holders, who realize that they can exploit their personal lives to appeal to certain values and build symbolic capital. Many politicians take advantage of this trend to attract voters. Public displays of family bonds, such as walking the dog in front of the White House, have frequented.
But the personification of politics, or the politicization of the private sphere, has taken another form as well. Politics has merged with show business. Following the example of Arnold Schwarzenegger and Ronald Reagan, an increasing number of politicians rise from the ranks of show-business. Many professional politicians choose to appear on talk shows. For example, the Bulgarian prime-minister, Boyko Borisov, is a frequent guest of the reality shows Big Brother and Music Idol. Even prime-minister Putin, who is considered to be a highly reserved character with autocratic tendencies, makes an effort to show off his fit physique during his fishing outings.
The French president Nicolas Sarkozy and his then new girlfriend Carla Bruni made a show as they holidayed in an Egyptian resort in December 2007. The move was designed to improve the image of the president after his divorce. As the education minister Darcos noted: “a happy president, and I was about to say a president in love, is a president that has without a doubt more of a bounce in his step and will be more energetic and efficient in fulfilling his duties” (News24.Com, 2008).
Nobody has exploited the entertainment part of politics to build symbolic capital as masterfully as the Italian prime-minister Berlsuconi. In one such instance, standing beside a young woman, whom he had converted from a show girl to an MP and a member of the Italian parliament's constitutional affairs committee, Berlusconi said: “Take a look at her! I'd marry her if I weren't married already” (Hooper, 2007). His wife expressed her humiliation and infuriation in an open letter to a national newspaper (Fisher, 2007). On the same evening, Berlusconi, the skillful master, replied in a letter, which, needless to say, was public as well. He said: “Forgive me, however, I beg of you, and take this public testimony of private pride that submits to your anger as an act of love. One among many. A huge kiss. Silvio”. The Guardian commented also that Berlsuconi’s escapades were meant to “convince Italy's voters that he is still young enough to be prime minister again. Having had a face lift and a hair transplant, Mr. Berlusconi has increasingly tried to give the impression of a man in his prime” (Hooper, 2007). This is only one of many instances when Berlsuconi uses his private life to enhance his public image. Italian politics as a whole is probably one of the best examples how the boundaries between public and private life have broken down.
By opening up their private lives, politicians unwittingly gave a blank cheque to the media to intrude in their public lives. The boundaries of intrusion have changed. Four decade ago, the media kept silent about Kennedy’s numerous affairs, among which with Marilyn Monroe. Nowadays, however, former US president Clinton’s affairs with Paula Jones and Monica Lewinsky almost cost him the presidency.
Only a decade ago, the French media kept silent about the government’s indiscretions. Even though the chattering classes in Paris knew President Mitterrand kept a mistress and an illegitimate child, nobody thought it was necessary to inform the French public. The outgoing President Jacques Chirac has also admitted to having loved many women “as discreetly as possible” (Bremner, 2007), but the media discussed it only after his mandate ended. By contrast, nowadays president Sarkozy and his wife each had very public affairs. These developments have led many observers to conclude that the limits for revealing private indiscretions of politicians have receded: “For years, the private lives of French politicians remained just that. Even sex scandals at the highest levels were hushed up. No longer. Both Nicolas Sarkozy and Ségolène Royal have opened up in the hopes of winning the presidency….They are two ambitious politicians who have slyly introduced the tricks of show business into their trade, making glamour a political statement and using their private lives to enhance their public standing. They act as though being human qualifies them for the presidency. And by doing so, they have violated a French taboo” (Sandberg, 2006).
The result of these developments is that journalists can reveal private misconduct of politicians at a lower cost. Many journalists reason that it is hypocritical for politicians to parade one’s private life before an election but to keep it private after the election. As Moncrieff points out: “when it comes to public or private scandals, when a politician gets into hot water, they [politicians] invariably assume double standards about their families. Politicians are only too ready to use - I would go so far as to say “exploit” their families when it comes to photofigureers, for instance, on their general elections literature. However, when there is trouble brewing, suddenly the politicians’ families are supposed to be “off limits”. Most journalists - and I count myself among them - take the view… that if a politicians exposes his family on election addresses, then that family should be counted as fair game when things go wrong” (Moncrieff, 2006: 73).
Scandal Costs: Defamation Laws
The severity of defamation laws is the second factor that determines the costs for revealing allegations against the government. The stricter the defamation laws, the more costly it is to make scandalous allegations publicly. The strictness of defamation laws can be assessed according to the following criteria: Who carries the burden of proof?; Is there a special provision for the public interest?; Do public officials have a special status?; Does the law discriminate between opinion and facts? and How harsh is the penalty?
The most important factor that defines the severity of defamation laws is who bears the burden of proof - the defendant or the plaintiff. The British and the American libel laws mark two extremes in this respect. British common law presumes that the media allegations are false, unless the defendant proves the opposite. American libel law, grounded on the First Amendment, assumes that the media allegations are true unless the plaintiff proves the opposite. Placing the burden of proof on the defendant, i.e. the accuser, makes it much costlier for him or her to make scandalous allegations. Conversely, if the plaintiff has to prove that the statement is false, the cost of making defamatory statements is smaller for the accuser, and we will expect more scandals.
A case in point is the lawsuit that Boris Berezovsky filed against Forbes magazine in 1996. Forbes portrayed Berezovsky as a criminal “on an outrageous scale” who had left behind him “a trail of corpses, uncollectible debts, and competitors terrified for their lives”. The case was heard in Britain, which places the burden of proof on the defendant. Needless to say, it was impossible for the magazine to provide evidence that Berezovsky had left a trail of corpses. It settled the suit and victorious Berezovsky ran a full page ad in The Financial Times trumpeting the settlement (Actualmalice.com, 2003).
Had the case been heard in the USA, Berezovsky would have had to prove that he had not left a trail of corpses, and that he is not a criminal. In this case, he would have, most likely, lost. Similarly, a Russian newspaper statement: “he [the plaintiff] evidently left all conscience and basic sense of shame in the cloakroom, together with his Soviet Army officer uniform, a long time ago”, was found by a Russian court to be defamatory on the grounds that ‘the defendant’s representative
failed to produce evidence in court supporting that allegation” (Article 19, 2003). Needless to say, it is very hard to prove that somebody has left one’s sense of shame in the cloakroom, hence the greater costs of making similar incriminations.
Defamation laws also differ as to whether they consider the intention of the accuser. The New York Times v. Sullivan introduced the ‘malice standard’ in 1964 in the USA. The malice standard condones false statements if journalists can prove that they honestly believed at the time of the publication that the statement was true. In England, by contrast, the publisher is liable for any false statement of fact, regardless of his or her intent. If defamation laws make a provision for the intention of the journalists, the costs for making scandalous allegations decrease, and vice versa.
Another feature of the defamation laws is the treatment of the difference between opinion and fact. It is less costly to make media allegations if the defamation law does not prosecute statements of opinion. American law assumes that opinion cannot by nature be true or false, and therefore it is not properly defensible and cannot be prosecuted. The British system makes a similar provision of “fair comment”. The “fair comment” clause requires the defendant to show that the statement expresses a view that a reasonable person can hold, even if he or she were motivated by dislike or hatred of the plaintiff.
Finally, it is less costly to criticize the government publicly, if defamation laws have a provision for “public interest”. The otherwise strict British libel laws slightly decreased the costs of accusation by introducing the “Reynolds privilege” in 2001. The clause allows journalists to publish material if they act in the public interest, even if relevant allegations later prove to be untrue.
Scandal Costs: Laws for Classified Information
The laws for access to classified information also affect the probability of the emergence of scandals. Such laws enable the government to refuse to explain its actions under the pretext that the information constitutes a state secret or an issue of national security. The “strictness” of the laws is measured by the areas that count as “classified information”. Stricter laws for classified information increase the costs of making a scandalous allegation because they make it harder for journalists and other accusers to allocate information and to prove the facts of their publications, when they are challenged in court.
Here is one example. In the February 2003, Chechen terrorists took 850 people hostage in a Moscow theater. The Russian Special Forces raided the theater building using an unidentified gas. The Russian media and public suspected that 129 of the hostages died from the gas that the government used, not from the terrorist siege. Yuri Schekochikhin, a member of the Duma Committee on Public Safety and a journalist from Novaya Gazeta, put in a formal inquiry whether the gas used by the government was poisonous.
To avoid public shaming, the government hid behind the national security clause. It responded: “The Federal Security Bureau looked into your request about the lawfulness of making it a state secret to report on the contents of the gas... According to Article 80 of the Presidential Decree from November 30 1995 any evidence, revealing the methods and means of operative work, constitutes a state secret” (Schekochikhin, 2001).
Quoting “national security” as a way to avoid a scandal is not a unique Russian phenomenon. Noble (Noble, 1992) points out that the Reagan’s administration used the national security clause as an excuse to stop the trial of Oliver North, who was alleged of selling weapons to Iran illegally. Noble even argues that “control of classified information is a tool that can potentially be used to circumvent the entire Independent Counsel process, as it puts the Executive Branch in a position of judging whether or not one of its own is prosecuted”.
Scandal Costs: Relationship between the Government and the Intelligence Services
The cost of making accusations is smaller when the accuser has easy access to discrediting information. In each country, the intelligent services preside over a large reservoir of potentially compromising material. If the government has close ties with the Intelligences Services, then it is harder and costlier for non-government accusers to gain access to discrediting information (Goodman, 2009).
The strategic importance of information gathered and collected by the Secret Services is evident in all countries. The Clearstream scandal in France is a case in point. The former French intelligence chief, General Philippe Rondot, was instrumental in instigating a scandal meant to discredit Nicolas Sarkozy during the 2004 presidential elections in France. Rondot confessed to have assisted the former prime-minister Villepin in compiling a list of the names of illegal offshore bank account holders. The list included the name of Nicolas Sarkozy, who was Villepin’s chief rival in the election.
Bulgaria is no exception in this regard either. Some political observers argue that the national secret services in Bulgaria started the scandal which brought down the government of Philip Dimitrov, the spy scandal that occurred at the end of the mandate of Zhan Videnov, and the series of scandals alleging Dimitar Kostov’s government of corruption (Kostov, 2005). They conclude that it is not by chance that every new president and prime minister in Bulgaria fights over appointments to the national intelligence services.
Scandal Costs: The Role of Journalistic Associations
In a recent interview, a renowned Bulgarian soccer player stated that he was entertained, rather than appalled, by the crude treatment of journalists. He said: “when they beat them [the journalists] up, I enjoy it. I really enjoy it. They have a journalists’ syndicate to protect them. Protect them from what? From the jackdaws. Only torment for such rubbish. Torment”. This statement is, obviously, politically incorrect. But it makes an important, albeit obvious point: journalists need protection to be able to openly criticize powerful political figures. The weaker the journalistic association, the less capable it is to protect the journalists from reprisals of the alleged government members. Hence, the lack of powerful journalistic associations increases the costs of initiating scandalous allegations.
Reprisals for critical journalistic material vary. They can range from death under mysterious circumstances (Anna Politovskaya and Paul Khlebnikov in Russia), to imprisonment, verbal assault, dismissal of journalists (the Paris Match editor Alain Genestar in 2006), forcing the journalists to resign voluntarily (Dilyana Grozdanova in 1998 in Bulgaria), or suing the journalists (Anna Zarkova in Bulgaria). One of the most popular and accomplished investigative journalists in Bulgaria, Stanimir Vangelov from the newspaper 24 Chasa, told me that there were no protections for investigative journalists in Bulgaria and that he would have quitted a long time ago, if it were not for the international journalistic associations.
The Rise of Political Scandals: Conclusion
Political scandals are a complex phenomenon. They are a medley of institutional, legal, actor-specific and social prerequisites. They demonstrate how the confluence of factors of totally different nature can form an important occurrence. For example, laws for classified information and defamation are balanced against the public approval ratings of the government, which in turn come into play with the role of organizations, such as journalistic associations and the security services. Because of the element of “randomness” implicit in its formation, it is not surprising then that media scandals unfold in quite different patterns.


1.For example, very strict laws posit that information about the incumbents’ private property constitute a state secret.

2.The interview with the author was conducted on November 10, 2007 in Sofia, Bulgaria.


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