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Should Online Political Advertising Be Regulated?

  • Category
    Governance
  • Published
    19th Nov, 2019

Recently, Twitter’s chief executive, Jack Dorsey, decided to stop all political advertising on Twitter globally.

Context

Recently, Twitter’s chief executive, Jack Dorsey, decided to stop all political advertising on Twitter globally.

Background

  • Political advertising is advertisements used for the purpose of appealing, directly or indirectly, for votes or for financial or other support in any election campaign. It includes usage of media from conventional to social media for this purpose.
  • ECI in 2013 ruled that the model code of conduct and its pre-certified political advertisement rules will apply to the social media as well. Earlier, pre-certification was restricted to print and electronic media.
  • Fake news, deep fakes and political advertising are the biggest challenges threatening the fundamentals of democracy.
  • In a measure to protect the democracy. Jack Dorsey, Twitter’s CEO has announced to stop all political advertising on Twitter globally.
  • However, Facebook’s founder, Mark Zuckerberg says that his company as part of a “fifth estate is a new kind of force in the world” which gives the public a megaphone to “express themselves at scale (online)”.
  • Google in its advertising policy of India has made it mandatory to submit a pre-censorship certificate from the ECI in order to run political advertisements on its platform. In doing so, Google has become the first Silicon Valley Company to comply with the ECI’s instructions.

Analysis

Why political Advertising need stricter regulation?

  • Democracy requires free and fair elections
    • Voters should be given all the details they need to make an informed decision
    • Misinformation is proliferated and highly emotive subjects handled in ways that could easily be construed as manipulative. This harms the spirit of fair elections.
    • The distribution of this manipulative content through TV and social media is proving destructive for the democracy.
  • Self-Regulatory System has not worked
    • Political parties are morally responsible to follow a code of conduct during elections.
    • In the absence of independent controls, the only thing we are left to cling to in the hope that political campaigning follows some set of rules are the morals of politicians which is absurd.
    • Politicians simply shrug off the issue and continue without any regulation 
    • Self-regulation model of media has failed and brought fissures to the surface and it needs to be regulated.
  • Freedom of speech does not grant the right to deceive

Electoral Laws and Digital Media

  • EC is empowered under Article 324 of the Indian Constitution to conduct free and fair elections in the country. Under this Article ECI draws power to regulate political advertising.
  • Section 43A, The Information Technology Act, 2000 provides compensation for failure to protect data by body corporate. However, it has limited applicability to political parties or to data brokers that market personal data at a massive scale. For instance, 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.
  • 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.
  • Freedom of speech provides that political advertising should not be strictly regulated. But freedom of speech is meant to ensure protection of diversity of opinion and the individual’s right to express in a reasonable manner.
  • Lies, deception and treachery are not covered under freedom of speech to influence voting behavior. Manipulated content is incongruous with freedom of speech.
  • The blurred line between editorial content and advertising
    • Advertisements must be distinguishable from editorial content. However, by mimicking the style of a news program or documentary, party political broadcasts intentionally lose that distinction.
    • Advertisements are often misleading
    • Advertisements often cause offences

What is it that makes online political advertisements problematic?

Two things that make online political advertising problematic:

  • Targeting: Online advertising allows, especially on social networks, personalised targeting based on multiple attributes that wasn’t possible at the same level before. These platforms make it possible to go from manufacturing consent to manipulating consent. A person is continuously fed with information to vote for a particular party.
  • Invisibility of online political advertising. In advertising on a social media platform, not everyone gets to know the sponsor of the advertisements. These advertisements are frequently treated as content.

What are the risks of regulating online political advertising?

  • Online advertising is not subject to direct regulation and absence of transparency of sourcing and targeting of advertising.
  • No limit to volume of advertising or spend in respect of referendums – statutory spending limits are not in place in parliamentary or Assembly elections.
  • The speed at which disinformation can be spread and accessed online means that online platforms present a particular risk in relation to disinformation and deliberate bias.
  • Online manipulation (including bots)
  • Particularly in respect of micro-targeting:
    • Opaqueness in privacy and consent controls
    • Influencing Outcomes unlawfully or in a concealed manner

Mitigating Factors identified

  • Digital media literacy awareness/education initiatives
  • Industry initiatives, e.g. Facebook pilot advertising transparency tool (Ad Library), changes in the Twitter API in January 2018.
  • Fact checking initiatives, i.e. Facebook and the Journal.ie partnership to identify fake news
  • Data Protection law requires data processors to have consent from data subjects for processing their data. It also compels any entity holding personal data to take a range of specific measures to protect that data, including data security measures likely to have the effect of reducing the risk to the electoral process by increasing the resilience of the IT systems used by entities holding relevant information.

Political Advertising – a Timeline

  • Election Commission of India (ECI) in 1999 prohibited all political advertisements on electronic media prior to elections. 
  • That decision was challenged before the Andhra Pradesh high court on the grounds that the ECI lacked the powers to ban political advertisements and that the ban violated the fundamental right to free speech under Article 19(1)(a) of the Constitution.
  • Chief Justice M.S. Liberhan in his judgment struck down the ban as unconstitutional. 
  • When the matter was appealed before the Supreme Court, the Ministry of Information and Broadcasting citing a particular rule in the Cable Television Network Rules, 1994 that prohibited political advertisements from being broadcast on cable television.
  • Supreme Court struck down the rule and passed an order concocting a draconian pre-censorship regime for all political advertising through electronic media.
  • As per this order, all political advertising would have to be submitted to the Election Commission (or any bureaucrat designated by the EC) for approval before it could be broadcast on electronic media. According to the court, any appeals against the decision of the bureaucracy would lie before only it.
  • The first time that judges of a democratic country vested the powers to censor political speech with unelected bureaucrats.
  • There was no attempt by the Supreme Court to engage with the constitutionality of the prohibition contained in the impugned rule. The court also declined to engage with the prickly constitutional issues in relation to pre-censorship on speech despite having divergent views on the issue in its earlier precedents.  
  • ECI in 2013 ruled that the model code of conduct and its pre-certified political advertisement rules will apply to the social media as well.
  • Google in its advertising policy of India has made it mandatory to submit a pre-censorship certificate from the ECI in order to run political advertisements on its platform. In doing so, Google has become the first Silicon Valley Company to comply with the ECI’s instructions.
  • Bombay high court directed ECI to pass orders on regulating political advertising on social media against a PIL seeking regulation of political advertisements on social media.

Role of ECI in Regulation Online Political Advertising

  • There is no clarity whether the pre-censorship regime is limited to paid advertisements and not content posted by political parties on their social media accounts. ECI has a role to define the contours of pre-censorship regime.
  • The ECI must ensure parity of treatment between political advertising on social media and traditional media.
  • The tools like WhatsApp have no longer remained personal messaging services but emerged as mass communication services. A party worker can communicate a political message to five groups, which each group containing 256 persons, in a matter of seconds. Indian political parties are using WhatsApp for mass messaging, often with hate filled messages. How should the law classify these messages sent to 1,280 persons without any cost?

Conclusion

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 like propaganda spreading, fake news, paid news, et cetera for which the use of digital media and social media is being made.

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