In response to a petition in the Bombay HC, Facebook and Google have submitted that they will make changes (more on these changes below*) to their advertising policy ahead of the Lok Sabha elections 2019, as reported by LiveLaw. Google and Facebook’s affidavits were submitted before the bench of Chief Justice Naresh Patil and Justice NM Jamdar.

The petition was filed by Sagar Suryawanshi from Pune seeking direction to the Election Commission of India (ECI) to prohibit everyone (it is unclear if the petition refers to only online platforms or ‘everyone’) from posting sponsored political ads during the 48-hour ‘silent period’. Apart from the ECI, the other respondents in the case are the Union of India, MeitY, Google and YouTube, Facebook and Twitter.

*While the case was filed in November last year, Facebook and Google have announced changes to their political advertising policy to increase election transparency in the last two months. The companies’ responses to the court overlap with their newly-released policies in many ways.

Facebook’s, Google’s steps for political ad transparency

Per LiveLaw, Facebook’s affidavit said:

  • It is ‘voluntarily’ launching tools, on 21 February, to increase transparency of political ads
  • Only verified advertisers who have provided their identity, location, and information of who placed the ad are allowed to run ads
  • Political ads will contain disclosures including who paid for the ad
  • For disclaimers under ads, “authorized advertisers can identify themselves, a page they run, or another organisation [can be] named, additional credentials like a phone number, email, website, or a Media Certification Monitoring Committee certificate from ECI will be required.”

Google’s and YouTube’s affidavit 

  • Cites an SC judgment in the case of Ministry of Information and Broadcasting vs. M/s Gemini TV Pvt Ltd, stating that political ads should be pre-certified by a committee appointed by the ECI
  • This places responsibility on verifying ads on the political party/candidate looking to float an advertisement
  • Google has also reiterated the requirements of a pre-certificate from ECI to run ads, verification of advertisers, and its transparency report – steps it announced for India earlier this month.
  • Additionally, Google acknowledged that it is not exempt from the 48-hour silent period rules

Silent period compliance?

It is worth noting that neither company has said anything that was previously unknown:

Facebook’s offline election verification process of political advertisers has been known since December. It also announced a political ads library for India in January, which is set to go live on February 21. Additionally, a Facebook spokesperson confirmed that the political ads archive will be backdated to December 2018. Facebook also began showing ‘Paid for by’ and ‘Published by’ disclaimers starting February 7.

Google also announced its election transparency efforts, including the transparency report, pre-certificate requirements, and advertiser verification, last month. However, it is unclear if these guidelines apply to other Google sites like YouTube as well, or only for Google.

It is worth noting that both companies have assured compliance with the 48-hour silent period prior to the elections (see Facebook and Google), but neither has specified how they will do it.

As MediaNama has reported earlier, political parties have managed to circumvent the model code of conduct by leveraging the nature of Facebook’s non-chronological Newsfeed. Political parties publish large numbers of political ads a few hours before the blackout period kicks in. This ensures that political ads and posts show on users’ timeline during the blackout period.

Notes from the case

Court documents state that Suryawanshi’s petition cited “restrictions regarding advertisement on social media sites in the US and UK in respect of matter affecting the national elections”.

  • The petition’s “main thrust” was that restrictions on social media companies (i.e. the respondents) are required to “ensure free and fair elections.”
  • The ECI has submitted a proposal to amend Section 126 of the Representation of the People Act, 1951, it informed the court.

The Union Government told the court that the Sinha Committee Report titled “Report of the Committee on Section 126 of the Representation of the People Act, 1951” has been submitted to the ECI. The report deals with some of the issues in the petition.

The Sinha Committee report

Per a government statement, the committee’s report, headed by deputy Election Commissioner Umesh Sinha was submitted to the ECI on January 10. The committee was to look into:

  • “identify difficulties/critical gaps to regulate the violation” in Section 126
  • Impact of new media platforms and social media during the silent period
  • Suggest changes to the present provision of silent period

The Committee carried out detailed consultations with various political parties, the Press Council of India, News Broadcasters Association (NBA), the Internet and Mobile Association of India (IAMAI), the Ministry of Information and Broadcasting, MeitY, and representatives from Facebook, WhatsApp, YouTube, Twitter, and Google.