7 May, 2019
The 2014 General Elections saw a new kind of election campaigning. Far removed from the dusty rallies, a considerable part of the campaigning took place online. Political parties employed big data analytics to crunch user information of nearly 100 million Indian social media users and used it to their advantage in campaigning.
Political parties’ major portion of campaigning was done by PR executives sitting on computers, in addition to the proactive Twitter accounts of their leaders. A study estimated that around Rs. 300-400 crores were spent by the political parties for their publicity and campaigns on social and digital media in 2014.
Two Sides of the Coin
Social media is no longer just a communication platform between individuals but has shaped itself into a media giant with a reach like no other. The 2016 US Presidential Elections saw an unprecedented rise in candidates’ engagement of social media, with campaigns circulating misinformation and rumours against opponents. Intelligence agencies further unearthed foreign involvement in dissemination of ‘fake news’ and stories on social media about Hilary Clinton.
The 2018 Cambridge Analytica scandal brought out the dark side of social media and its impact on elections. Cambridge Analytica reportedly assisted political parties in India as well. The company had harvested the personal data of millions of Facebook profiles without their consent and reportedly used it for targeted messaging in the 2016 US Elections. A watershed moment in the public understanding of personal data, it incited a public discussion on ethical standards for social media companies, political consulting organisations, and politicians.
Consumer advocates called for greater consumer protection online and the right to privacy, and for a curb on misinformation and propaganda. Multitudes of researchers have evinced the substantial impact of social media on the electoral process and how manipulation of newsfeed on social media platforms (platform) may cause a significant swing in voting behaviour.
Social media and Election Silence
To regulate the use of platforms for online campaigning by political parties, the Election Commission of India (ECI) along with the Internet and Mobile Association of India (IAMAI), Facebook, Google, Twitter and other platforms, published a “Voluntary Code of Ethics for the General Election 2019” in March, 2019.
The Model Code is based on the Sinha Committee recommendations to amend the provision of election silence[1] so that it is extended to cover print and social media, internet, cable channels and online versions of print media. It recommended a collaboration between platforms and the ECI to develop a mechanism to allow the platforms to flag content violating electoral laws and take it down. It is an endeavour to ensure free and fair elections, and to curb the use of hate speech, fake news, and propaganda politics to further electoral interests.
The Model Code calls for the participating platforms to monitor and regulate content and advertisements being published and/or circulated by political parties; whilst keeping in mind the principle of freedom of expression. The platforms are required to create and deploy appropriate policies and processes to facilitate access to information regarding electoral matters on their products and/or services as well as impart training to the nodal officer at ECI on their products/ services, including mechanisms for sending requests as per procedure established by law.
The Model Code includes development of a “notification mechanism,” by which the ECI can notify relevant platforms of potential violations of Section 126 of the Representation of the People Act, 1951 (RPA), and other electoral laws. All objectionable content flagged by the ECI will be removed or disabled immediately, within an outer limit of three hours. These valid legal orders will be acknowledged and/ or processed within three hours for violations reported under Section 126 as per the Sinha committee recommendations. All other valid legal requests will be acted upon expeditiously by the participants, based on the nature of the reported violation.
Implementation and Control of Social Media During Elections – ECI and its Powers
The platforms are required to create a dedicated, high priority reporting mechanism for the ECI and, during the period of the elections, appoint teams dedicated to interface with the ECI, and to exchange feedback on receipt of a lawful request from it, assist in taking expeditious action.
The platforms are further required to provide a mechanism for relevant political advertisers according to the law, to submit pre-certificates issued by the ECI in relation to election advertisements that feature the names of political parties or candidates for the elections. Such details must be provided to the platforms and the ECI, which will be duly verified or carry such certification of verification on the page. Where the certification has not been obtained, the platforms shall expeditiously process one when notified by the ECI.
Presently, Google and Facebook have come up with a requirement for Government-issued registration documents for parties and candidates wishing to buy ads, with the pre-certificate issued by the ECI. Google requires additional verification in case of political ads. Political parties are required to share details of expenditure for creating and managing social media content. The motive is to bring about greater transparency in terms of ad sponsorships: the viewer ought to know the person behind the advertisement.
The platforms will have to further add tags or pre-existing labels to disclose the nature of a post as a paid political advertisement, in order to facilitate transparency. The online platforms have to continuously update the ECI on the measures being taken by them as well as remain in constant communication with the ECI. To enhance the implementation of the Model Code, citizens are allowed to report violations through the C-Vigil App.
The ECI will process the violations under the Model Code in accordance with the provisions of Section 126 of the RPA within three hours. Violation of Section 126 is punishable by imprisonment for up to a period of two years, or a fine, or both. The Model Code extends the scope of the Section to print, electronic media and intermediaries including telecom service providers, internet service providers, search engines, etc. Previously, in cases of violation of Section 126, the ECI has proceeded to take necessary action by filing of a First Information Report (FIR) against the parties violating the provisions, and directing any concerned or related election material being broadcast or displayed to be ceased immediately.
Challenges in Implementation
Despite the good intentions, controlling social media is easier said than done. Social media is dynamic and swift, and it is a herculean task to recognise, flag and contain the spread of information in the stipulated time frame of three hours. Moreover, automated internet bots only further the crisis: some negatively affect their marketing data and some violate the terms of use on many social mediums such as Instagram, which can result in profiles being taken down and banned. There are automated accounts that pose as real people but their main functionality is to reblog and share posts, often leading to a ‘viral’ circulation.
The law of intermediary liability is still evolving; under Indian law, intermediaries, including users of social media, are required to exercise due diligence while they discharge their obligations under the law. The Information Technology Act, 2000, holds a user liable for posting any incriminating or illegal content or material on social media. Further, it recognises the user to be a content service provider and network service provider and hence, intermediaries under the law. The Supreme Court held in Shreya Singhal’s case that intermediaries are duty bound when they are called upon by any order of the Government to move or disable access to any information as well as provide relevant connected information pertaining to the identity of offenders.
Section 79 of the Information Technology Act provides for “notice & takedown” under which an intermediary on being notified that any information, data or communication link, residing in or connected to a computer resource controlled by it, is being used to commit an unlawful act, must take adequate action against the same within 36 hours or lose its immunity to prosecution. However, the immunity applies only where the platforms are mere conduits or hosts and are exercising due diligence. It does not apply where the intermediary has conspired, abetted, aided or induced the unlawful act.
Failure to take action can result in the platform being held responsible as a contributing party and its executives may be charged under section 153A of the Indian Penal Code. To escape liability, platforms often act as censors creating a deterrent and a chilling effect.
Even in the absence of separate, concrete legislation, the provisions of the Information Technology Act, and Indian Penal Code, 1860, continue to apply to social media online viz. Intentionally Insulting Religion Or Religious Beliefs (S. 295A), Promoting Enmity Between Groups On Grounds Of Religion, Race Etc. (S. 153A), Defamation (S. 499), Statements conducing to Public Mischief (S. 505), Insulting The Modesty Of A Woman (S 509), Criminal Intimidation (S 506), Sedition (S124-A), etc.
Technology companies like WhatsApp have launched a new fact-checking service that can help users verify any piece of news and conclude if a piece is true, false, misleading or disputed. So far, as per the data compiled by the ECI, over 500 political posts and advertisements online were removed by platforms including Facebook, Twitter and Google, during the silence period preceding the end of poll for the first three phases in compliance with the election silence imposed under Section 126(b) of RPA. So far, the Model Code has been able to curb posts aimed at voter misinformation, public morality and decency as well as hate speech and unduly influencing voters.
It is imperative for both users and platforms to exercise due diligence, wisdom and efficient deployment of technology to curb misinformation, propaganda posts and fake news. There needs to be better awareness with regards to election laws as well as social media ethics on the part of political parties as well as the platforms and users. Every platform must have a transparent complaint redressal mechanism and outreach programmes informing users of the same. Additionally, steps could be taken against deployment of big data analytics in political campaigning and the ECI could seek mandatory disclosures from political parties availing such services and their campaign spends.
For further information, please contact:
Faraz Alam Sagar, Partner, Cyril Amarchand Mangaldas
faraz.sagar@cyrilshroff.com
[1] Section 126 of the Representation of the People Act Prohibits public meetings during period of forty-eight hours ending with hour fixed for conclusion of the poll.
