Election Commission of India, last week, issued a directive on how the Internet is to be used for paid political communication (advertisements and content), points towards a lack of understanding of how the Internet functions. While you might argue that the EC is just doing its job, the directive does indicate unreasonable and impractical expectations of websites and advertisers, when it comes to understanding how the Internet operates, and might create a situation of liability for publications and platforms, where one might not necessarily apply. Read the directive here.

The Election Commission has asked the Chief Grievance officers of websites (how many even have them?), and the IAMAI to ensure the following:

1. No political advertisement shall be accepted and displayed on Internet and Internet based media without pre-certification
2. Internet sites shall inform commission regarding expenditure incurred by the political parties/candidates on political advertisements, when requested for.
3. Internet based media will do active scrutiny to ensure that content displayed by them during electoral process is not unlawful or malicious or violative of the Model Code of Conduct
4. In case any unlawful content coming to the notice of the election machinery and brought to the attention of internet based media, the same would be removed forthwith.

Apart from this, it has directed Political parties and candidates to:
1. File affidavits with information on authentic social media accounts of candidates, and pre-certified political advertisements.
2. Pre-certify online campaigns
3. Keep a separate and correct account of election expenditure, including investment in advertising on social media, as well as operational expenditure on content online, salaries and wages paid to people who maintain social media accounts
4. Model Code of Conduct shall be adhered to, including for content on the internet, including social media websites, by candidates and political parties.
5. “As far as the content posted by persons other than candidates and political parties is concerned, the Commission is considering the matter in consultation with the Ministry of Communication and Information Technology on practical ways to deal with the issue, in so far as they relate to, or can be reasonably connected with, the election campaigning of political parties and candidates.”

MediaNama’s take on this directive:

1. Pre-certification by publications: Media publications that use blind ad networks, like Google, to monetize their inventory, have limited or no control over which advertisements are displayed on their websites. The onus on display of advertising lies with the networks, who serve advertising from their servers. It should be their responsibility, not that of the publisher.

2. Pre-certification by Ad networks: Ad networks often display advertising depending on the context of the content, and at any given time, there are hundreds of thousands of ads that may be displayed. It is humanly impossible for ads to be pre-certified. In fact, there are companies like Sokrati that automate creation and display of advertising depending on performance. Pre-certification of all advertising is impractical.

3. Political Ad from a support group: How is it possible for a website to prevent a political advertisement being shown, in case money is being paid by an entity that is not a political party? For example, a Chicago based group that supports the Aam Aadmi Party will not come under the jurisdiction of India but has the ability to serve ads targeting India using ad networks? The directive, as applicable to political parties and candidates is far more practical: “You are, therefore, requested to ensure that no political advertisements are released to any internet based media/websites, including social media websites, by political parties/candidates without pre-certification from competent authorities in the same format and following the same procedures as referred in the aforesaid orders.”

4. Jurisdiction: How can the EC extend its jurisdiction over the entire Internet, much of which doesn’t even come under Indian jurisdiction. In fact, even Google argues in court that Google India Pvt Ltd is just a sales office, and its operations in the US (or is it Ireland) do not come under Indian jurisdiction?

5. Active scrutiny: The suggestion that “Internet based media will do active scrutiny” is as myopic as Kapil Sibal’s infamous pre-censorship suggestion to social networks. Social networks are platforms, and millions of messages are posted on them every day. To do active scrutiny of user generated content is not just practically impossible, but also has issues regarding freedom of expression. Core to this issue is the question of whether a website is viewed as a media entity or a medium of communication between citizens. Does the EC think that Twitter and Facebook are “Internet based media”? In Social Media, the EC includes:
a) collaborative projects (for example, Wikipedia)
b) blogs and micro blogs (for example, Twitter)
c) content communities (for example, YouTube)
d) social networking sites (for example, Facebook)
e) virtual game-worlds (e.g., Apps)

It’s also worrying that the Election Commission is acting on “demands from the political and social groups to regulate the social media during elections as other media is regulated.” Controlling citizens’ right to free speech because political and social groups are asking for it? The problem for the EC is that it views the Internet as a media publication, and not a means of communication. It is both.

The “Model Code of Conduct” is impractical and un-enforceable today, and needs an update. We don’t understand why there should be a restriction on a candidate to seek support from voters even on polling day. Even if that is allowed, asking the websites across the globe to actively monitor ads and content about India because of elections in the country is impractical and restrictive.