Social media platforms will be held liable if they don’t “make adequate arrangements” to safeguard against misuse ahead of and during the upcoming Bihar elections, Chief Election Commissioner Sunil Arora said while announcing the Bihar elections on Friday. Social media platforms will have to set up “strict protocols” to handle any violations. This suggests that in the absence of such protocols, social media platforms will forfeit their safe harbour protections that shield them from bearing liability for content posted by users.

“If such arrangements are not made by them, they would not be allowed to take the pretext of being only the providers of platforms and shall be held responsible if necessary action is not taken by them properly and adequately.” — Sunil Arora, Chief Election Commissioner, Election Commission of India (ECI)

The voluntary code of ethics that the industry body Internet and Mobile Association of India (IAMAI) had first adopted ahead of the 2019 Lok Sabha Elections, and later for all general and state elections, has also been adopted for the Bihar elections. Under this code, social media platforms which have signed it have to pre-certify political advertisers and take down violative content on an expedited basis during the silence period. It’s unclear when this code will come into affect for the Bihar elections. We have reached to the IAMAI and ECI for details.

With the ECI’s announcement, the Model Code of Conduct has come into force until the results are declared on November 10. During this period, political parties, especially those in power, cannot use taxpayers’ money to place partisan advertisements that can skew voter perception.

No communal content on social media from anybody will be tolerated: ECI

Arora also warned all people and organisations from misusing social media. “The Commission would like to make it emphatically clear that anyone who makes mischievous use of social media, for example trying to foment communal tensions, etc. for electoral purpose shall have to face the consequences under the law of the land,” he said.

Arora also “entreated” political parties and their candidates “to sensitise their representatives not to indulge in malpractices, malicious propaganda, hate speech or fake news and such acts shall be dealt sternly, harshly by the commission”. “We will be closely monitoring such activities and such posts and shall take action appropriately,” he said.

This statement comes a few weeks after a Chattisgarh-based journalist, Awesh Tiwari, deposed before the Delhi government’s Peace and Harmony Committee and argued that hate speech against CAA protestors in Shaheen Bagh was shared on Facebook ahead of Delhi elections but no action was taken — neither by Faebook, nor by the Election Commission. The Committee’s chairperson Raghav Chadha seemed to agree with him and said, “There was a conspiracy between anti-social people, rioters, and Facebook. It was because of this, the atmosphere in Delhi was ruined in February.”

This particular Committee, in fact, was constituted in March 2020 after riots took place in Delhi a few weeks after the Delhi Assembly elections. It had hauled up Facebook (to no avail) after explosive reports from the Wall Street Journal showed that despite violating Facebook’s community guidelines, hate speech and violent content from BJP leaders was not removed from the platforms due to intervention by the company’s honchos in India.

Social media’s voluntary code of ethics comes into action

The voluntary code of ethics that Facebook, Google, WhatsApp, ShareChat, TikTok and IAMAI had adopted for the 2019 Lok Sabha Elections created a mechanism for Election Commission of India (ECI) to report violations to platforms. For violations that are reported during the silence period — a 48-hour period of no campaigning before the voting day — requests have to be acknowledged and/or processed within three hours of reporting. The code also mandates the social media platforms to require pre-certification from political parties for advertisements.

In September 2019, this code of ethics was adopted for all general and state elections. IAMAI is an industry body whose members include Facebook (which owns Facebook, WhatsApp and Instagram), Twitter, Google (which owns YouTube), Snapchat, and ShareChat among others.

Governing social media platforms during elections: Current legal landscape

Currently, there is no specific law for using social media platforms during elections. Under the Model Code of Conduct, social media platforms are generally lumped together with other forms of electronic and print media. Even the Intermediary Rules, 2011 have no specific provisions for conduct during elections, nor do the proposed amendments to them.

Only the Personal Data Protection Bill, 2019 talks about social media and elections, that too in a very limited and vague manner. It says that the central government can notify any social media intermediary as a “significant data fiduciary” if it has a “significant impact on electoral democracy” and has users above a certain threshold [Section 26]. Such a social media platform would then have higher burden of compliance which would include allowing users to verify their accounts and publicly marking verified accounts as such [Section 28].

The law does not forbid political parties from micro-targeting potential voters either. Any personal data that a political party collects — through its own apps, third party service providers (like Facebook or Cambridge Analytica), market research firms — can be used by the political party to serve customised ads, both on social media platforms and via bulk messages, to potential voters. In 2013, Netcore founder Rajesh Jain, who is a key member of the Friends of BJP, had proposed combining voter ID data with data available with political parties to micro-target voters via SMS.

The Data Protection Bill is expected to curb that since it qualifies “political affiliation” as sensitive personal data, and thus worthy of explicit consent of the user, that is, the potential voter in this case.

The Bill is currently being deliberated upon by a joint parliamentary committee whose report is due in the Winter Session of the Parliament.

Political parties to upload criminal history of candidates on their websites

It is also now mandatory for political parties to upload criminal histories of their candidates on their websites, Arora announced. They will also have to give information about pending criminal cases against the candidates, reasons for selecting such candidates, and why other candidates with no criminal history were selected.

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