Electoral Laws & Digital Media

Media, being considered as the fourth pillar of democracy is one of the most important weapons being used especially during elections. Of all the media, digital media in today’s digital world is the most used form of media, with the Loksabha elections currently being held all over the country, it is the responsibility of the Election Commission of India (EC) to keep a check on the candidate’s and party’s promotions and their means and limit of promotion and to ensure the same, the EC must be conferred with the essential powers to deal with the upcoming issues like propaganda spreading, fake news, paid news, et cetera for which the use of digital media and social media is being made. Are the electoral laws strong enough to deal with more contemporary issues like these? Is the EC having enough powers to deal with problems arising from use of Digital Media?

The EC currently is working under the powers conferred under Art.324 of the Indian Constitution and now, when the Model Code of Conduct (MCC) is already in place, this time; it has been instructed that the social media platforms too will have to follow the MCC. This step was taken mainly to tackle issues like online propaganda, paid news, et cetera.

The main base on which the propaganda is spread is the data collected from our social media platforms, the data which is personal to us and based on that, we see the content and the digital media platforms do not take the responsibility to monitor and verify the content which is posted on their websites. The present data protection law​has limited applicability to political parties or to data brokers that market personal data at a massive scale. This enables the creation, for example​, of WhatsApp groups based on voter lists coupled with phone numbers and caste, gender and other sensitive information to target voters with propaganda without their consent.

This time, the EC finally woke up to its powers and partnered with many digital media platforms including Facebook, one of the most used or to be more precise, misused platforms during elections. An official from Facebook had said, “Anyone

who wants to run an ad in India related to politics has to first confirm their identity and location, and give more details about who paid for or published the ad. We then run the ad with a ‘Paid for by’ or ‘Published by’ disclaimer and house it in a searchable Ad Library for seven years” The Facebook also agreed to give all the expenditure information to the EC.

Also, the EC had reportedly said, “All the provisions of model code of conduct shall also apply to the content being posted on the social media by candidates and political parties, ​For scrutiny, the district and state-level Media Certification and Monitoring Committees (MCMC), which vet all electronic and radio advertisements during the model code period, will now also have a social media expert on board.” Such social media platforms have to now take the responsibility to verify the content before allowing it to post. As seen above, the media content has to now go through a check by the MCMC and more recently, after the tie-upwith EC, platforms like Facebook and Sharechat using Artificial Intelligence have been successfully removing millions of fake accounts following the self regulations. Yes, the EC had recommended the Internet & Mobile Association of India (IAMAI) and other social media platforms to undergo self regulations.

They then presented the “Voluntary Code of Ethics for the General Elections 2019” in which the companies and the participants agreed to provide a mechanism for political advertisers to submit pre-certified advertisements only. The Code of Ethics also promises to facilitate transparency in paid political advertisements but the scope of the transparency and regulated content is very vague and in the absence of a clear legal basis, the code can be misused or used only in the favor of the participants.

Under S.126 of the Representation of the People Act, 1951; display of any election matter by means, inter alia, of television or similar apparatus, during the period of 48 hours before the hour fixed for conclusion of poll in a constituency is prohibited. But its application on social media platforms is not governed by any specific law and in that regard; a PIL was filed in Bombay High Court asking for a

similar blackout or silence period for social media platforms. The EC’s defence stood the self regulations to which the Hon’ble HC expressed its views and questioned why is EC hesitating to issue any such orders.

Contrary to that, the Supreme Court had expressed its happiness that the EC has finally waked up to its powers. The Statement came looking at the EC’s actions being taken against the senior leaders like Yogi Adityanath, Mayawati for making communal speeches but the powers of the EC with respect to regulation of media content over various social media and other platforms is still a big question mark.

Conclusion:

It is evident that the EC is empowered only under one provision of law i.e. Article 324 of the Indian Constitution. It is the only support for the EC to hold on to. To summarize the efforts taken by the EC to tackle digital media, it would not be wrong to say that the self regulations are not enough for the social media platforms to keep an eye over the content, the EC is having a hard time to enforce its powers not having specific laws to deal with the upcoming issues.

It is the need of the hour that the Electoral Laws in India must be drafted specifically into a new act giving powers to the authorities to deal with ever-growing area of digital media and its issues to ensure that the Elections are held in a truly fair and competitive manner and the true purpose of Democracy is served in a fair manner.

Author: Ashish Rohra, Intern at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at rishabh@khuranaandkhurana.com

References:

[1] https://economictimes.indiatimes.com/news/elections/lok-sabha/india/model-code-political-ad-rules-w ill-apply-to-social-media-too/articleshow/68350634.cms

[2] https://www.analyticsindiamag.com/indias-data-protection-bill-in-june/

[3] https://thewire.in/politics/indias-electoral-laws-are-ill-equipped-to-deal-with-digital-propaganda

[4] https://www.theweek.in/news/india/2018/10/27/sc-relief-madhya-pradesh-minister-accused-paid-new s.html

[5] https://www.business-standard.com/article/news-ani/sc-refuses-to-entertain-petition-seeking-prosecut ion-of-voters-indulging-in-electoral-malpractices-119042200475_1.html

[6] https://inc42.com/buzz/election-commission-seeks-ban-on-political-ads-on-social-media-48-hours-befor e-polls/

[7] https://inc42.com/buzz/general-elections-2019-social-media-to-follow-model-code-of-conduct/

[8] https://eci.gov.in/files/file/9509-general-election-to-17th-lok-sabha-2019-and-state-legislative-assembli es-%09of-andhra-pradesh-arunachal-pradesh-odisha-and-sikkim-2019-media-coverage-during-the-perio d-referred-to-in-section-126-of-rp-act-1951/

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