The Digital Challenge To The Election Commission’s Code of Conduct
On 1 March, as Indian Air Force wing commander Abhinandan Varthaman was making his way across the border after being released by Pakistan, Om Prakash Sharma, a BJP MLA from Delhi, shared two posters on Facebook. The images, one with a jet leaving a tiranga-colored trail of smoke in its wake and the other doused in saffron, featured Varthaman alongside the smiling faces of Prime Minister Narendra Modi, BJP president Amit Shah and — in a subordinate position — Sharma himself.
The two days that Varthaman had spent in Pakistan had been punctuated by a series of videos of him in custody, which rapidly went viral, searing his composed bravery — as well as his handlebar moustache — into the minds of millions of Indians. Sharma’s posters, which heralded Varthaman’s quick release as a strategic victory for Modi and hailed the pilot’s return, were similar to posts made by many other politicians scrambling to latch on to the pilot’s likeness to earn some quick electoral capital for their party.
A little over a week later, the Model Code of Conduct (MCC) came into effect ahead of the 2019 Lok Sabha elections, with the Election Commission of India announcing its intent to enforce it on internet platforms for the first time. The MCC is a set of guidelines that regulate elections in India, one of which cautions against using the armed forces in campaigning. Sharma’s posters became the first to be targeted under the new regime and have since been taken down.
Although the MCC has applied to internet platforms since 2013, no attempt has been made to enforce it thus far. The ECI has now announced a series of new measures, which fall into two broad categories.
The first encompasses measures designed to increase transparency in campaigning, such as verification of the identities and locations of all political advertisers, and disclosure of candidates’ social media accounts and expenditure. The second category includes norms aimed at curbing misinformation and hate speech by candidates: pre-certification of political ads by the ECI’s Media Certification and Monitoring Committee and the creation of dedicated grievance redressal channels through which the ECI can flag and takedown problematic content quickly.
But India’s online world of murky WhatsApp groups and Facebook pages, some of which can be bought by the hour, has thrown up a set of unique challenges. How does one regulate a realm of smoke and mirrors where the identity of key actors and their motives is tenuous at best?
“Most of the [election-related] information flow is actually not even happening via the IT cells, but through third-party contracts. These third-parties then to a large extent are not using the paid prioritization features of platforms but are then, in turn, engaging influencers to place what are called organic posts, which game the algorithm of [online] platforms to push in much more subtle marketing messaging blended with political canvassing,” said Apar Gupta, executive director of the Internet Freedom Foundation.
The ECI is stuck in the 1980s in the middle of a 2019 election. “Basically, they [ECI] are swatting flies in a cattle abattoir. They are not dealing with the carcass,” Gupta added.
Building consensus
Crucially, all the current measures in place to regulate elections online are being implemented based on voluntary commitments made by four major platforms: Google, Facebook, Twitter, and ShareChat. “The rules with respect to platforms have not been improved beyond what they were in 2014,” said Gupta. “So, there are no legally binding obligations on, for instance, Facebook or Twitter to take certain actions and there are no penalties prescribed for failing to do so.”
Further, the ECI has made no mention of regulating smaller platforms such as TikTok, Helo, Telegram, and WeChat, which are becoming increasingly relevant for political mobilization in rural and small-town India. And although Facebook has agreed to work with the ECI, none of the election-related initiatives announced by the company apply to its encrypted messenger service, WhatsApp, which is widely regarded as a hotbed of misinformation and hate speech.
The ECI has announced that the Internet and Mobile Association of India (IAMAI), under whose leadership the four major platforms co-ordinated with the ECI to evolve and agree upon the new measures, is currently working on a code of ethics for internet platforms. “The initial group was formed to participate in the Sinha Committee [which was looking into Section 126 of the Representation of People Act]. No one declined to participate in either the committee proceedings or the making of [new] procedures,” said Subho Ray, president of the IAMAI.
The new code of ethics, according to Ray, “will cover all Internet intermediaries”. However, he did not provide any indication as to whether these guidelines would be ready before the election and how the participation of other platforms would be ensured. “We have submitted a set of procedures. ECI is likely to come back to us with their feedback before we finalize,” he added.
Leaky transparency norms
A person working within the frenetic political campaign of a south Indian party told Mint that the implementation of the new ECI guidelines has prompted their party to switch much of their communication to WhatsApp and the smaller platforms, where there are no restrictions. “So, instead of larger groups, we cater to smaller and more groups. There are an insane number of groups based on region, caste, etc. The reach is still good and the messaging is direct. There has been a good response for TikTok videos mocking other leaders as well.”
The person also indicated that in order to escape scrutiny on the larger platforms, such as Facebook and Twitter, political parties are increasingly turning to alternative channels such as ad agencies, which push content on their behalf, as well as unofficial pages, and dummy accounts.
Facebook’s latest political advertising transparency report supports the claim that unofficial pages are ruling the roost. The two highest-spending pages so far, “Bharat Ke Mann Ki Baat” and “Nation with NaMo”, have spent a combined ₹2.77 crore on 4,669 ads since Facebook started tracking the data in February. In their disclosure documents, both pages have declared that they are based out of the BJP’s official headquarters in Delhi. Meanwhile, the BJP’s official page has spent just ₹8 lakh on 50 ads in the same period. Although Twitter and Google committed themselves to similar advertising transparency initiatives, they have not made the data available yet. Amit Malviya, the national information and technology in-charge of the BJP, did not respond to repeated requests for comment.
“Essentially, what has been done is that the money has been proxied to political consultancies so that they do not come under the ECI scanner,” said Pratik Sinha, co-founder of AltNews. “These pages are being run by tens of admins and it is not rookie content. It is created by professionals. Now, there is no accountability on how much money is being spent online and it is a serious issue. The ECI needs to recognize that these pages are doing continuous political propaganda and ask where the money is coming from,” he added.
The problem of proxy campaigning is not limited to just unofficial pages or manufactured Twitter trends. Issue-based campaigning by seemingly unrelated third-parties is a hornet’s nest on which there appears to be no consensus on the way forward.
For example, take the case of online ads on the need for a Ram temple in the middle of an election campaign. “If there is significant expenditure on an ad around Ram Temple, it won’t be counted as BJP expenditure unless the name of the party and candidate appear on the ads, which is not a necessity for the BJP, because the issue is something that they have been so vehemently taking up that by default it favours their narrative,” says Ankit Lal, a social media and IT strategist with the Aam Aadmi Party.
Enforcing takedowns
With a seemingly endless amount of campaign material pouring forth from official and unofficial sources and campaigns seamlessly jumping across platforms, there appear to be question marks about how the ECI will go about identifying content that violates the MCC and use its new grievance redressal channels to take such content down. Neither the platforms nor the ECI has said much about the free speech implications of taking content down.
For now, the official pronouncements appear to be focused on the removal of problematic content. The ECI has added social media experts to its district and state-level election Media Certification and Monitoring Committees and has launched an app called cVigil through which MCC violations, both online and offline, can be reported.
However, its record of responding to complaints appears to be less than stellar. “My experience has been that they do not respond for a month or a month-and-a-half,” said Shivam Shankar Singh, a political activist who has worked on a number of election campaigns since 2015. “Usually, they try to delay it till after the elections, at which point, they’ll say that the election is already over, so nothing needs to be done with the complaint.”
On 11 March, Singh filed a complaint through the ECI’s website about a video clip featuring Rahul Gandhi that was shared on Twitter by BJP MP and Union minister Smriti Irani. The clip was edited out of context to give the impression that Gandhi was being respectful towards Pakistani terrorist Masood Azhar. The video was accompanied by the hashtag #RahulLovesTerrorists.
“If she put up a hoarding saying that Rahul Gandhi is a terrorist sympathizer, then, that would be against the model code. If the same metric is being applied, calling him a terrorist sympathizer on Twitter should also be against the model code,” said Singh. Despite the apparent violation, the video is still available on Twitter at the time of writing.
Even in the event that the ECI does eventually act, the question of whether merely taking content down is an effective deterrent. Since the MCC does not give the ECI any punitive powers, the only way it can take serious action against offenders is to file FIRs using provisions of other relevant laws such as the Representation of People Act or the Indian Penal Code. However, these cases rarely result in offenders being punished.
According to Sarvjeet Singh, executive director of the Center for Communication Governance at the National Law University Delhi, this status quo is largely due to the snail’s pace at which the judicial system works. “By the time cases are in their final stages, in most cases, the term of the MP or MLA is almost over…” Gupta argues that the Constitution grants the ECI enough leeway to establish stronger regulations and that its current weak legal standing is down to a failure of imagination on its part.
Maintaining silence
Perhaps the hardest task in ECI’s unenviable list of responsibilities is that of ensuring that campaign-related activities cease 48 hours prior to polling. This silence period is intended to ensure that voters have a period of quiet reflection before casting their vote, free of last-minute manipulation.
Shivam believes that this rule has not accomplished much when implemented on the ground in the past. “Major rallies and events are stopped, but the last 48 hours is used for really clandestine things anyway. It’s not used for public meetings. It’s used for distribution of cash and liquor. It’s used to talk to village headmen who say that they have these many votes and getting them on your side. So, it really doesn’t matter that there are no speeches being made.”
On the internet, the task becomes doubly hard considering the volume of content and the diversity of sources.
According to Berges Malu, director of Public Policy, ShareChat, implementing this rule is simply not feasible. “Modi is the prime minister today. Say, he is fighting the election from Varanasi. Assume polling there is on a certain day. Assume 10 days before that is the election in Tamil Nadu and he says vanakkam to Tamil Nadu. Now, he is not contesting elections directly in that state. He is still PM. How am I supposed to stop him?”
Google will be implementing blocking at the state-level, sources said. The platform will stop serving political ads to users in that state 48 hours before any part of the state is going to polls. Facebook and Twitter did not respond to requests for comment.
Although the measures taken by the ECI and the platforms to check the negative effects on the electoral process appear to be fraught with holes, they represent a start toward tackling a mammoth problem. “There is no way they will get it right in this election,” said Sarvjeet. “But the fact that everyone is aware that there are issues and they have got at least the major platforms to agree to act, is a step forward.”
Originally published by Mint on March 18, 2019.
