Election Advertising on Social Media Platforms: Is the Election Commission Outsourcing Regulation to the Private Sector?

Nidhi Singh and Gunjan Chawla

(The piece was first published in the Leaflet)

As polling day approaches, political advertisements have become omnipresent–offline and online. Their influence cannot be denied. Broadly, it can be exerted in two ways – through the purchase of political ads on social media and through the expression of individual users on such platforms. Yet, these crucial categories of stakeholders who wield substantial influence on the opinion of voters through social media remains beyond the direct oversight of the Election Commission of India (ECI).

The ECI is currently grappling with unprecedented regulatory challenges engendered by the leveraging of social media platforms by political parties and candidates in election campaigns. The growing influence of these platforms has created new stakeholders in the electoral process that have the capacity and the reach to influence the opinions of far more voters than was possible by traditional media outlets.

In this piece, we examine the regulatory framework applicable to political ads on social media and its shortcomings.

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The Regulatory Framework

The ECI’s Model Code of Conduct (MCC) only regulates the conduct of political parties and candidates but not that of other stakeholders in the electoral process. The increasing role of social media in election campaigning necessitates that existing law, including S.126 of the Representation of Peoples Act, 1951 be amended to meet challenges in implementing the 48-hour period of election silence on social media platforms. The Sinha Committee’srecommendations to this effect are being considered by the ECI.

Consequently, the ECI recently directed that that any advertisement on social media sites in the 48-hour period before the polling must not promote or cause prejudice to any party or candidate, in the light of S.126. Candidates are required to submit details of their social media accounts at the time of filing nominations. Advertisements on social media are treated at par with those on traditional media outlets.

Upon invitation of the ECI last month, social media companies including Google, Facebook, and ShareChat under the aegis of the Internet and Mobile Association of India (IMAI) participated in the formulation of a Voluntary Code of Ethics for the General Elections 2019“to identify measures [they] can put in place to increase confidence in the electoral process”. The Code was presented to the ECI on 20 March 2019, underlining the participants’ commitment “to facilitating transparency in paid political advertisements, including utilising their pre-existing labels/disclosure technology for such advertisements.

The Voluntary Code provides for a notification-cum-enforcement mechanism “keeping in mind the principle of freedom of expression”. Participants have agreed to provide “a mechanism to relevant political advertisers to submit pre-certificates issued by the ECI and/or the Media Certification and Monitoring Committee (MCMC) in relation to election advertisements that feature names of political parties or candidates for the upcoming elections.” They have also agreed to expeditiously process advertisements that do not feature such a certification and are lawfully notified to them. To improve the response time, platforms have agreed to provide for direct liaison channels between these companies and the ECI for prompt resolution of any violations.

Political Content and Ghost Advertisements on Social Media Platforms

There is no statutory definition of ‘political advertisement’. However, different platforms have tried to identify what constitutes political content and/or advertising in the articulation of their political content policies. For instance, Twitter’s Political Campaigning Policy identifies three categories of ‘political campaigning ads’ – (1) ads purchased by a political party, (2) ads purchased by a candidate and (3) ads advocating for a clearly identified candidate or political party. Google in its policy on verification for election advertising in India goes a step further and identifies four categories of users who may register for publishing political advertisements – (1) political parties (2) businesses (3) non-profit organisations and (4) individuals. It broadens the scope by including all ads ‘which feature a political party’.

Such political ads, including those that fall under category (3) in Twitter’s policy and (4) in Google’s policy, but are not directly funded by the political party or candidate, are called surrogate or ghost advertisements. They are a cause for concern because their wide circulation runs the risk of misleading voters and potentially facilitating unethical and/or illegal payments to support election campaigns through advertising. The fact that political advertisements have generated over INR 10 crore in revenue for Facebook since February 2019 reflects the magnitude of this problem, and the enormous expenses that could potentially go unreported as election expenses.

Although the new ECI guidelines mandate the disclosure of expenditure on social media advertisements by political parties and candidates, they do not amply cover the ads that are purchased by ‘supporters’, or ‘well-wishers’ of the party who cannot directly be linked to either the party or the candidate. The MCC and the Voluntary Code do not regulate this area adequately, and the platforms themselves have stepped in to fill this lacuna using their company policies – by requiring paid ads to carry disclaimers, taking down ads that should carry these disclaimers but do not, maintaining public archives of these ads and the expenditure incurred by the purchaser.

et, these ‘soft-law’ measures are unable to effectively address the issues relating to election funding. The expenditure on ghost advertising pages cannot be accounted for by the ECI accurately under the present law. With the 2019 Lok Sabha elections shaping up to be the most expensive elections ever contested, these ghost advertisers are now a major factor in influencing election outcomes. This raises issues of transparency and accountability. The platforms have expressed willingness to self-regulate. However, the effectiveness of these voluntary enforcement measures by social media platforms in ensuring accountability is limited, due to electoral laws that are archaic and ill-equipped to impose adequate sanctions – civil, administrative or criminal.

Enforcing the Voluntary Code: Criminal Sanctions?

The MCC lacks statutory authority and therefore, does not provide any penalties for violation. The only legal recourse for the violation of essential electoral ethics can be through prosecution, if the conduct in question violates a penal statute. Similarly, the Voluntary Code is also an instrument which relies upon self-regulation by stakeholders for implementation.

The criminal provision relating to election advertising on behalf of candidates without their authorisation can be found in S.171H of the Indian Penal Code (IPC), which imposes a nominal fine of INR 500 as punishment. Further it provides that such authorisation may be obtained after the fact, only if the expenses incurred do not exceed INR 10.

In contrast to the paltry fine prescribed, the expenditure of the top ten Facebook pages for political advertisement for the months of February and March total to INR 6,13,24,689. Of these pages, while one is registered to the Bharatiya Janata Party (BJP) and another to the Biju Janata Dal (BJD), the others are registered to private entities and four of these 10 pages were run without disclaimers stating they were political advertisements.

Penalties prescribed under the IPC are grossly insufficient to deal with the magnitude of challenges presented by the reach of ghost advertisers. At the same time, the application of S.126 to social media could potentially expose individual users, especially social media influencers posting paid content, to criminal liability.

Until S.126 is amended in consonance with the recommendations of the Sinha Committee report, online political advertisements could arguably fall under S.126(1)(b) which specifically prohibits “the display of any election matter by means of cinematograph, television or other similar apparatus.” (emphasis added) S.126(3) clarifies that “election matter” means “any matter intended or calculated to influence or affect the result of an election”. This definition does not depend entirely on the content of the ad, and includes an element of mens rea requiring proof of intent to influence or affect the result of an election. Similarly, the expression “other similar apparatus” is too vague to indicate to an average voter, what conduct is permitted on social media platforms in the 48-hour period. A sweeping application of S.126 to social media platforms, which prescribes a punishment of two years’ imprisonment and fine, could severely jeopardise the individual user’s right to freely express their political opinions online during this time.

Curious Anomaly

A perusal of the MCMC’s pre-verification requirements for political advertisements reveals a curious anomaly. Anyone other than a political party or candidate applying for a certificate for advertisement is required to sign a solemn declaration that the advertisement is not intended for the benefit of any political party or candidate and that the advertisement has not been sponsored, commissioned or paid for by any political party or candidate. This has two possible implications.

Firstly, the declaration acts as an immunity blanket for third party political advertisers, protecting them from prosecution under S.126 by legally excising the element of ‘intent to influence’ that is inherent in the very act of publishing a political advertisement on social media.

Secondly, this declaration conflicts with the definitions of political advertisement formulated by social media platforms. In this regard, the Voluntary Code bridges a crucial gap in the regulatory framework by nurturing an organic, symbiotic relationship with the MCC, while ceding to its primacy. Such an approach enables us to effectively use the categorisations of political advertisers by social media companies as an interpretative guide to limit the scope of application of S.126 to target violations by ghost advertising, but refrain from targeting political speech of individual users.

Given the gaping loopholes in the legal framework to ensure free and fair elections by regulating and monitoring election advertisements, the Voluntary Code is a welcome step towards ensuring transparency and accountability in the elections. It now falls on the ECI to provide a uniform definition of ‘political advertisements’. However, social media influencers comprise a unique category within individual users and present a unique set of challenges, which needs to be examined further as a distinct issue.

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