India: May The Best Man Win: ECI's Social Media Code Of Conduct

Last Updated: 21 May 2019
Article by Faraz Alam Sagar and Pragati Sharma

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 silence1 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.

Footnote

[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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions