The Election Commission of India (ECI) has asked social media firms whether it can disclose its correspondence with them (such as takedown requests) to Right to Information applicants, reports the Economic Times. The ECI wrote this in a letter on May 1st to the Internet and Mobile Association of India (IAMAI), the industry body acting as the middleman between ECI and the companies. Citing Section 11 of the RTI Act, which deals with disclosing third-party information, it gave the platforms – Facebook, Google, Twitter, ShareChat and Bytedance – 10 days to reply. In mid-April Twitter took down two communal tweets by Uttar Pradesh chief minister Yogi Adityanath on the Election Commission’s orders. Posted on April 5, the tweets equated the Indian Union Muslim League (IUML) with the ‘green virus’. During the elections, Facebook removed 574 posts, Twitter disabled or deleted 49 accounts or tweets at the orders of the ECI. YouTube removed two videos and WhatsApp disabled three users after the EC flagged them.

How the RTI Act deals with third-party information

Section 11 of the RTI Act says that public information officers should ask the third party whether the information should be disclosed. It says that the final decision rests with the officers but allows the third party to appeal. Here is a summary:

  1. When a public information officer intends to disclose any confidential information that relates to a third party, the officer must, within five days of receiving the request, notify the third party and invite it to reply orally or in writing. The submission shall be kept in view when deciding whether to disclose the information. Except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest outweighs any possible harm to the interests of the third party.
  2. When a public information officer serves a notice to a third party under sub-section (1) the third party shall, within 10 days of receiving the notice, have an opportunity to make a representation against the proposed disclosure.
  3. If the third party has been given an opportunity to make a representation under sub‑section (2), the public information officer shall decide whether or not to disclose the information and communicate this to the third party in writing.
  4. A notice given under sub-section (3) shall include a statement that the third party is entitled to appeal against the decision under section 19.

‘Voluntary code of ethics’ for social media platforms

On March 20, the Election Commission announced that Facebook, Google, WhatsApp, ShareChat, TikTok and the Internet and Mobile Association of India (IAMAI) had presented it with a ‘voluntary code of ethics’ for the general election. In it, the platforms agreed to:

  • Mechanism for ECI to report violations to platforms: Platforms developed a notification mechanism for the ECI to legally notify them of potential violations of Section 126 of the Representation of the People Act, 1951 and other electoral laws.
  • Action within 3 hours for violations of 48-hour silent period: For reported violations of Section 126 of the RP Act – which prohibits campaigning in the two days before voting – platforms will acknowledge and/or process these legal orders within 3 hours (as per the Sinha Committee recommendations).
  • Dedicated staff during elections: The platforms said they would appoint dedicated people/teams during the elections to contact the ECI and exchange feedback for acting on its legal requests.
  • Pre-certification for political advertisers: The code requires platforms to provide a method for political advertisers to submit pre-certificates issued by ECI or its Media Certification & Monitoring Committee (MCMC) for running election-related ads. It requires that platforms “expeditiously” act on paid political ads that do not have a certification, as the ECI notifies.
  • Communication between the ECI, IAMAI, and platforms: Platforms will update the ECI on measures they have taken to prevent abuse of their platforms, pursuant to legal requests by the ECI.
  • Awareness and education campaigns: The platforms will organise campaigns to build awareness about electoral laws and other related matters.
  • Training nodal officers: Platforms will train their nodal officers to the ECI how to use their products and send sending requests to the platforms.