This article has been written by Prabal, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho. It has been edited by Zigishu Singh (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).
Table of Contents
Visualising democracy in the contemporary era has diversified the dimensions in which people influence decision-making, with political stalwarts expanding their agenda to reach out to the maximum. Major democracies around the world have idealised Elections as being intrinsic to the principles of strengthening democracy while adopting new strategies emerging in the dynamic international form. Not only elections are seen as a medium of choosing leadership, but on a wider spectrum, propagate the political beliefs that govern them. It is through the Election Campaign, the exposure is drawn out to various portfolios, through channels of sharing information, traditionally print media or the Broadcast media through Television or Radio. Witnessing the era of globalisation, the world has moved beyond physical boundaries and a bulk flow of information and data transmission, connecting and influencing people across the globe. To facilitate the voluminous flow of information, society is gifted with Social Media, a platform made accessible anywhere that is capable of transmitting ideas, knowledge, and beliefs beyond the limitations of traditional sources. The habits of Instagramming and posting on Facebook, with chains of News through WhatsApp have liberated speech by revolutionising its reach, its access and speed, and opened new doors for the political campaigns to efficiently convey the agenda. To address a wide stream of data, the human brain does have its own constraints, with social media bombarding our senses, interrupting every minute of our day with updates and tweets, thoughts for the day and mindless chatter. Serious threats that avert the key motive of social media campaigns is the fallacy in authentic reporting and political advertising. Neglecting Social Media merely upon its shortcomings will prove fatal to the principled democracy and therefore, the paper aims at evaluating those shortcomings and suggesting comprehensive strategies to facilitate public choices through Social media.
Free and fair elections are one of the basic foundations of democratic societies. The election is a part of the political process in democracy and every political system also employs the election as a symbol of democracy. Election, the formal process of selecting a person for public office or of accepting or rejecting a political proposition by voting, is a way of empowering citizens to choose representatives and adopt important decisions in their interest, according to the principle of political representation. Every democracy requires integrity that must foster social and individual security, to ensure that political equality is honoured. Electoral integrity not only gives a boost to social integration and upholds the rule of law, but regularly scheduled elections with universal and equal suffrage strengthen the political ideals upon which the state rests. Elections offer choices upon which people form their political aspirations and that inversely guides the political beliefs professed by political stalwarts. It is thus, election campaigns that foster such decision making for the governance of the people. A political campaign is an organized effort that seeks to influence decision making progress within a specific group. In democracies, it often refers to the process by which representatives are chosen or referendums are decided.
Role of media
Electoral events are intrinsic to the spirit of a democracy, where the choices of the people have a long-term effect on their way of living and the course upon which the country is governed. It has always been recognised that the media plays a crucial role in that it acts as a platform for the communication and sharing of ideas, a hub of divergent views and ideas, that, in a crucial manner, frame or influence public opinion.
The internet has given people unprecedented access to information about elections and enabled them to express their opinions, interact with candidates and get actively involved in electoral campaigns, to make informed choices in exercising their franchise during elections. This has revolutionised elections, which are key to nurturing and strengthening a democratic culture, by granting access to reliable information and communication platforms via the Internet.
As the world has jointly come together to witness the ever-growing era of globalisation, it has become eminent that the flow of ideas throughout the states has been a crucial medium for the dissemination of information and new notions in the arena of world politics.
It has also enabled mass mobilisation at times of political turmoil and whenever the ideals are considered to be manhandled, acting as tools of checks and balances.
As far as Indian mass media is concerned it consists of several different types of communications: Newspapers, television, radio, cinema, magazines. Indian media has been active since the late 18th century while print media started in 1780, radio broadcasting initiated in 1927, and the screening of Auguste and Louis Lumière moving pictures in Bombay initiated during the July of 1895 is among the oldest and largest media of the world. The first newspaper Bengal Gazette was started by James Augustus Hicky in 1780. These were the first tentative steps of journalism in India. Southern India got its first newspaper as The Madras Courier in 1785 by Richard Johnson, a government printer. In 1878, The Hindu was founded and played a vital role in promoting the cause of Indian independence from the colonial yoke. Today this paper enjoys the highest circulation in South India and is among the top five nationally.
The emergence of Television broadcasting, although started in the late 20th Century, as the Door darshan came into picture. The visual media was revolutionized, with the coming in of brands like Reliance, Tata Sky etc. The private television news channels changed the style of Journalism in India. When the nation adopted the policy of Privatisation, the onset of satellite television pan- India gathered momentum. Further, International satellite television was introduced in India by CNN through its coverage of the Gulf War in 1991. In August 1991, Richard Li launched Star Plus, the first satellite channel that beamed the signal to the Indian subcontinent.
For televised news, the viewers had to watch Doordarshan and some international news channels like BBC or CNN. In this race to provide more news, more information, Zee Television jumped into the battlefield by launching the news channel Zee News in 1995. The trend of 24 hours news channels which started in 1995, still continues. In any society or democracy, the media needs freedom in its work. Indian media has been free and Independent throughout most of its history, even before the establishment of the Indian empire by the Great Asoka, on the foundation of righteousness, openness, morality and spirituality. The democracies throughout the world have moved beyond the traditional practices of governance and have been continuously improving and adapting to the new methods. This has been possible through awareness and public activism through the tools of Social Media. Today, the entire world is not only inter-dependent, but also inter-connected by platforms such as YouTube, Instagram, Facebook, Twitter, which not only provide the mediums of entertainment but also account for the awakening that the territorial borders exist only in physical form.
Onset of social media
Social media comprises primarily internet and mobile phone-based tools for sharing and discussing information. It blends technology, telecommunications, and social interaction and provides a platform to communicate through words, pictures, films, and music. Social media are the Applications that are accessible over the line of the Internet, working as a network worldwide, allowing the users to create, edit, share and reach enormous volumes of data, information and ideas. These Apps offer a multi-levelled approach towards the transmission of data; Private networks that are accessible to specific groups of people, usually the known linkages of people; and Public networks, acting as publication and content-creation platforms that gives access to the public worldwide as the modes of sharing information over a range of events and developments.
The trend of online platforms such as WhatsApp emerged as a major breakthrough for communication of information that provide safeguards to the data transmitted enabling end-to-end encryption. The range of potential intermediate platforms is very broad and could include image hosting plat-forms, news aggregators, blogs, photo and video sharing services, social media, wikis, cyber lock-ers, even online games platforms.
The information which users gather through social media helps them form fresh opinions, apart from reinforcing the beliefs they already hold. Furthermore, social media reawakens latent opinions of the users. It triggers them to take actions on their latent or inactive opinions. The potential to influence the collective consciousness of the voters makes social media a key player at the time of elections and between them.
Inevitably this idealisation of the media is contradictory to the realities of this environment, more complex and frequently highly partisan, if not biased. In fact, the media has always played a dual role in influencing the mass opinion; it acts as a platform on the one hand, through which citizens communicate with each other (via the medium of professional journalism), on the other hand, it enables the citizens to act as social influencers/actors themselves. However, in dispersion of views and information, most of the democracies do not establish a free media, thereby putting certain obligations and restrictions upon the editorials, such as censorship in some cases, which somewhat avert the message that is to be conveyed.
The internet thus, acting as a platform for political parties to present their agenda to the electorate and to mobilise a larger support base for their causes, efficiently reduces the cost of communicating with voters. Such lower costs are only possible on account of social media accessibility than broadcast media, given the availability of free blog and video sharing platforms. Small political parties with limited resources and independent candidates, in particular, benefit from social media to enhance their base and reach to the people.
According to a polling report of Ipsos Mori and King’s College, London in 2015, majority of the public felt that social media platforms are giving a voice to people who would not normally take part in political debate. However, no view gets through without criticism and no platform is free of complication. While the media does give people a voice of their own in the political arena, the general population yet expressed less trust in social media. In the above stated survey, only an insignificant mass was found to have more trust in political information available on social media platforms than that they read in print media.
Election campaigning in india
The history of elections in India, in fact, dates to the Act of 1919 there original, however, is rooted in the Act of 1861 itself. Holding elections is necessary to determine the will of the people. The Hon’ble Supreme Court has laid the fundamental principle of an election campaign in a landmark case of People’s Union for Civil Liberties v. Union of India as follows:
“Democracy being the basic feature of our constitutional set-up, there can be no two opinions that a free and fair election would also guarantee the growth of a healthy democracy in the country. For democracy to survive, it is essential that the best available men should be chosen as people’s representatives for proper governance of the country. This can be best achieved through men of high moral and ethical values, who win the elections on a positive vote.”
In the Representation of the People Act, 1951, the word “Election” is defined as follows: “Election means an election to fill a seat or seats in either House of Parliament or in the House or either House of the Legislature of a State … ” Thus, it is evident that the word “Election” connotes an Act choosing.
It may be pointed out that the scope of the term ‘Elections’ is wide, which includes the entire process of Election commencing with the issue of a notification and terminating with the declaration of the election of a candidate. The question with regard to the meaning of the word “Election” came up before the Supreme Court in the case of N.P. Ponnuswami v. Returning officer, Namakkal Constituency where the hon’ble court approved the opinion expressed by the learned Judges of the Madras High Court in A.V. Srinivasalu Reddy And Anr. vs S. Kuppuswami Goundar that the term “Election” may be taken to embrace the whole procedure whereby an ‘elected member’ is returned whether or not it is found necessary to take a poll. Further said, the Supreme Court:
“The word election has been used in the Constitution in the wide sense, that is to say to connote the entire procedure to be gone through to elect a candidate to the legislature“.
This case is regarded as a landmark case in Election Laws. Its ratio has been consistently followed by the same court in several rulings. In the case of Mohinder Singh Gill v. Chief Election Commissioner, Justice Krishna lyer J. , giving the majority decision observed:
“The rainbow of operations covered by the compendious expression election thus commences from the initial notification and culminates in the declaration of the return of a candidate“.
Therefore, it is evident that the word ‘election’ is used in India in a wide sense i.e. the expression “election” used in the Constitution of India is intended to cover comprehensively all the diverse steps involved in the process of selecting a representative, from the issuing of a notification calling an election up to the declaration of the results. It is difficult to imagine the conduct of an Indian election without very substantial involvement of the country’s vibrant media. Over the last sixty-eight years, India’s media has been a force multiplier in the delivery of free and fair polls each time. The Election Commission of India looks forward to media support for dissemination of important information, for effective enforcement and for creating an aware electorate. At the same time, elections are conducted on the basis of laws, instructions and stipulated procedures and some of these touch upon media and media practices, particularly during election campaigns by political parties and candidates. Election campaigns are the means by which candidates and political parties prepare and present their ideas and positions on issues to the voters in the period preceding election day. The dates of an official election campaign period, usually a period of a month or several months leading up to election day, are often legally defined.
To state the obvious, India has undergone a big change over the past three decades, and it is quite eminent to study the transformation into the campaign arena. Today, we see an India which is more politically conscious, young, urban, middle class, on the move, more skilled, more connected and exposed to technology. There is an upswing in the number of people coming out to vote, a rise in the number of political parties all of which point to a rising trend of politicisation.
According to Com. Score report India has bypassed Japan to become the world’s third-largest Internet user after China and the United States. Political parties are becoming tech-savvy and realizing that social media is the only way to reach out to this young youth. No doubt, the emergence of social media gives voices to voiceless and fractured common people, which is negligible in the conventional and stereotype media. It also emerges as an important source of news for the people.
One of the key factors in the promotion of Social media is the Youth of the country, which comprise the majority of the population composition. As in the era of technological advancements, Social Media has taken over other platforms of information and ideas, making the political parties switch from traditional to more advanced approaches to influence the people. It is generally believed that social media and the internet have the capacity to strengthen democracy by providing a new arena for online deliberation on politics. It is argued that as people get online and gain access to communication technologies it gives them opportunities for discussion and thus increases conversations and discussions around political issues.
The rise of social media platforms in the country has been accompanied by a steady decline of traditional media over the years. Newspaper readership and TV news viewership seem to have declined. In 2014, 29 percent of voters had said that they read newspapers daily. In 2019, this figure declined to 18 percent. Similarly, the proportion of those watching TV news daily has declined from 46 percent in 2014 to 35 percent now. It seems that as voters have moved to newer mediums of getting information including social media, this has clearly impacted their consumption of news through traditional media sources.
Also, the Political parties through social media get information regarding voters’ likes and dislikes; and manipulate them accordingly, especially the Swing Voters, whose views will be changed through tailoring information. In this scenario, the political parties and politicians want to use Social Media for communication and campaigning purposes as much as possible to influence voters, which saves their time, resources and more importantly it gives a larger audience for interaction.
2014 Elections: Socialising Political Agenda
We can witness some of the significant instances of Social Media in the political sphere, by overviewing the elections of 2014 and 2019. In 2014, professional advertising skilfully transformed Modi from a regional, right-wing, riot-orchestrating politician to a strong, development-driven nationalist leader who could connect with youth, where Social media played an important role by popularising Modi’s image as a strong and development focussed leader in Gujarat who could replicate the “Gujarat model of Development” in the rest of the country. It was instrumental in disseminating the political message far and wide, reaching out especially to younger voters, by flooding social media messages to advocate his propaganda. Although India’s social media population was only about 110 million in 2014, a pre-election report by the Internet and Mobile Association of India (IAMAI) portended that social media could inﬂuence the outcome of the general elections in as many as 160 out of the 543 constituencies, making social media ‘‘the newest vote bank with the power to shape Indian Politics”.
However, when we focus on the election of 2019, we could witness the deteriorating image of Social Media and the repercussions it caused, leading to disharmony in the political mindset of the public. It is a time when unemployment is at a record high, economic growth is faltering, and there have been shocking caste/ communal atrocities. Focussing on the use of social media, it became a platform where vicious campaigns were carried out to vilify the victims of these atrocities and killings. Social media sites have been used by vicious and abusive trolls to create a culture of intolerance and abuse, where the aspirations of one group were sacrificed while the others’ normalised. The ruling party campaign has stood out, as mentioned earlier, for invoking jingoistic nationalism and whipping up passions, and making divisive public remarks.
The emergence of various social media platforms has certainly made it easier for politicians to connect with the people, but is talk of its impact on politics and elections exaggerated? Such a scenario emphasizes the need to understand the drawbacks Social Media has when it is tampered with for personal political aspirations, and how such misuse is toxic to the political views of the people.
Loopholes in social media campaign
Social media did play an important role in carrying forward the political slogans, proposed schemes of the parties, however, amidst the awakening and advocacy for the use of social media, we seem to have exaggerated the actual impact of this medium. Although, social media does seem to have made an impact as the people who were using it were found to be by and large far more opinionated than the ones who were not exposed to any of these platforms, and further, it did manage to spread its reach to a larger proportion of the voters compared to 2014, but in the last one year, the growth seems to have stagnated. Political advertising and, especially, the exercise of media campaigns during the pre-election period are among the issues that, regardless of their important role in informing or influencing the electorate, have escaped precise, unambiguous and legally binding stipulations.
During the last few years, we have witnessed a significant increase in ‘fake news’, consisting of deliberate misinformation spread via online social media. This phenomenon is even more common at the time of elections, wherein, the political parties and leaders, in order to have an edge over their opponents, spread, or instigate their supporters to spread, a lot of misinformation to mislead the voters. The easy targets could be the ones who don’t understand social media platforms as much because of their lesser participation than others, i.e. the ones who use social media less frequently. The very nature of online advertising also requires further investigation. Compared to television, social media companies have far greater control over what specific audiences see. Platforms have made some efforts to allow third parties to assess who is paying to advertise on them. Yet these tools can be rudimentary. Tech companies should make sure metrics such as the audience segments that have been targeted are clear and publicly available.
As set out earlier in this paper, the main impacts of social media that are felt to be potentially problematic in elections are:-
- Virality – the speed of communications; Several cyber-crimes, defamation, invasion of privacy, and many more can be easily committed through social media and once such objectionable content is uploaded, it becomes viral and consequently, very difficult to contain.
- Filter bubbles – closing off voters from contrasting opinions
- The incentive to be offensive or extreme (click behaviours)
- Micro-targeting of voters bypassing spending controls
- False relevancies (Google and Twitter bombs)
- Hidden or uncertain identities
- Misinformation and disinformation exploiting these channels.
- Social media usage varies by region- The usage of social media does not seem to be evenly spread out across the country at the moment. An analysis of usage of various social media platforms by regions reveals that the eastern part of the country seems to be lagging behind the rest of the country at present. Not only this, but three-fourths of voters in this region found to have no exposure to social media at all as per social media exposure index.
- Passive Recipients of News- A majority of the population claimed that they never share any political material online. It has been evident that social media users seem to be relatively more comfortable in just being passive recipients of political news on social media sites rather than actively sharing news that is political in nature. A much larger mass is said to have read political news on social media daily or sometimes, than those who claimed to use social media for expressing their political views or sharing political news.
- Existence of Upper-Class dominance- The social media space has always been upper-caste dominated and continues to be so. Upper castes are nearly twice as likely to have high or moderate exposure to social media as Dalits and tribals. This has been a consequence of the technological gap faced in the countries worldwide, since those who are educated, rely upon the trends of technological innovations, yet the uneducated or technologically weaker sections remain extrinsic to such privileges. Some of the communities having access to technology have reported higher usage of social media than the other communities, however, lower than the upper castes. At the other extreme, for those who don’t have access to social media at all, the gap is even wider among communities. This problem of deficit accessibility poses a serious threat to Indian politics, as yet, a large mass of population exists in the circle of the uneducated.
- Paid News in the Parliament – In recent months, instances have occurred where individual candidates, as well as political parties, have given out monetary consideration to publishing houses to give out articles of their promotions, disguised as “News”. This has been commonly referred to as the ‘Paid News Syndrome’. It is distorting parliamentary democracy in multiple ways, such as distortion of media being more objective and thus hampering political choices of the people by providing undue advantage to those candidates/political parties who are able to afford these packages, over those who remain out of reach of such medium. This unethical arrangement manipulates democracy, by negating the disadvantaged, thereby breaching the provisions of the Constitution of India. Paid advertising also increases the “dumbing down” of political debate. Local candidates who do not enjoy much popularity and influence are keen on self-promotion, rather than the agenda focussed upon, since social media doesn’t promote a descriptive debate, rather a hazy attempt. Paid political advertising in the broadcast media has traditionally been prohibited in many countries, whilst it has been accepted in others.
- The issue of defamation- Politics is an arena that is usually associated with unethical memoranda, usually leading to foreseeable instances of one political group condescending the other, in the run for vote banks. Especially, where the focus is laid on key constituencies such as the NCT of Delhi, those in Uttar Pradesh, the picture is clear to show rivalry among different groups, often ending up defaming the other to convince the mass into supporting them. While Social media goes unregulated, in concerns with the people’s fundamentally guaranteed freedom of speech & expression, keeping a stringent check upon the same offers a wide criticism rather than focus on the dignity of the defamed. Instances of sarcasm over social media may get the picture of a ‘Meme’, but it surely violates one’s liberty when they are publicly targeted to blemish their agenda over those who resort to such measures. Previously, broadcasting regulations such as advertising restrictions and impartiality obligations were not essential measures as the platform of Social Media in itself is the conundrum. Disintermediation of political campaigning undermines traditional filters based on journalism values of truth, fact-checking and separation of opinion from fact.
- New actors in the electoral process: Intermediaries adopt powerful new gatekeeper positions that enable them to influence the outcome of electoral processes. Search engines, seen as trustworthy by a majority, have the potential to influence the electorate’s attention and voting preferences. Epstein and Robertson (2015) have highlighted the “search engine manipulation effect”, showing that a biased search engine result ranking can shift undecided voters towards one candidate. This could lead to new forms of corruption and manipulation that are not captured by existing rules that focus mainly on broadcasting and cross-jurisdiction boundaries.
- Truth and misleading statements: Disintermediation of political campaigning undermines traditional filters based on journalism values of truth, fact-checking and separation of opinion from fact. One of the key drawbacks of social media is the authenticity of facts and claims, as the global audience is trapped in the Fastrack channels of information transmission that it seems quite lethargic to pace up with the non-stop sharing of ideas and beliefs. To some extent, rumours and abject statements have caused instances of social upheaval among the mass audience and post-investigation, most of these have no authentic sources and are merely the results of negligent and unaware media that go un-regulated.
- Transparency: Social Media has its own paradox. The fact that such platforms are accessible to anyone across the globe, makes them prone to misleading prophecies. Since it is easy for anyone to be on Social Media with just an active Internet, it leads to the creation of fake extremist accounts that directly or in some way pose a threat to sentiments of religious/political groups and such outrages are channelled by political activists to enhance their own political propaganda.
We can undoubtedly observe individuals and groups, who frequently change their names to get more followers in order to spread fake news, hate speeches etc, with malafide motives to exploit and manhandle the social and political thoughts. As already mentioned with the increasing internet penetration and Smartphones, the users of Social Media are increasing. However, the key threat is the failure to differentiate between fake news/content and authentic ones.
Regulation: human rights concern
Human Rights,have attained their stature owing much to the United Nations Declaration on Human Rights (UDHR), to which many states of the world are signatory. They have constantly raised the issues pertaining to human rights on the philosophy that such rights are ensured to every person, that must not be neglected at any cost, on being the born humans of the natural law.
In consonance with Human Rights, as well as the Constitutional law in India, Freedom of Expression is fundamental, and political speech is the most protected form of speech, guaranteed to every citizen of India, as well as to every person in the world when we talk about it with a global reference. Freedom of Speech and expression is broadly understood as the notion that every person has the natural right to freely express themselves through any media and frontier without outside interference, such as censorship, and without fear of reprisal, such as threats and persecutions. Similarly, Article 19 (1) (a) of the Constitution of India also confers on the citizens of India the right “to freedom of speech and expression”, also includes the right to propagate or publish the views of other people.
From a human rights perspective, seeking to regulate the content found on online platforms carries serious human rights risks. Despite having framed certain policies to regulate the media coverage over false descriptions and avoid the use of malpractices, there is however, a meagre accommodation of those principles into the domestic laws. The states having enjoyed their sovereignty, pertain to the public concerned and form such laws of their will. While some states cooperate with the media to censor it, others are strong advocates of the fundamental rights of freedom of expression and conceive it as a violation. The risk would be to create a censorship model that would limit freedom of expression during elections. In fact, human rights principles recognise that speech is precious and limitations on speech particularly during electoral events would constitute a clear human rights violation.
Misguided social media usage has had a serious and damaging impact on innocent audiences; undermines democratic practices; affects markets, industry and health; is a tax fraud; a question of ethics. Various bodies administering the processes of Elections have recommended a need for self-regulation as an eyewash, and advocate to establish statutory bodies to check upon media contents in both print and electronic media, with powers to take strong actions. Elections have been the usual instrument by which modern representative democracy has functioned since the 17th century.
Our discussion is restricted to part XV of the Constitution of India which deals with Articles 324 to 329. These articles are the requirements related to elections that are cherished in the Constitution. With the inclusion of such provision in the Constitution of India, regulation of election has been strengthened by the establishment of such bodies. Article 324 is not only restricted to the appointment of the members who shall constitute the commission but also talks about conduct, supervision and control of free, fair elections and peaceful elections with regards to the Lok Sabha, Rajya Sabha, president and the vice-president.
The Election Commission (EC) of India is the only entity that has been given the authority to supervise, direct and control elections. In R.M. Seshadri v. G. Vasantha Pai, it has been held that:
“……………The policy of election law seems to be that for the establishment of purity of elections, investigation into all allegations of malpractices including corrupt practises at elections should be thoroughly investigated…………”
To conduct free and fair elections is the main goal of the Election Commission of India. But malpractices spurt mostly during the time of an election, making it burdensome and at this time the role of the election commission is very important to curb this menace. Article 19(2) provides for a number of grounds for imposing reasonable restrictions on the freedom of speech and expression. These are the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
First of all, the election commission has decided to go by the definition of the Press Council of India as any news or analysis appearing in any media for a price in cash or kind as consideration. The practice of paid news has to be seen as an attempt to circumvent the provisions of Sections 77 and 123 (6) of R.P. Act 1951 which prescribes accounting and ceiling of election expenses and makes exceeding such prescribed limits a corrupt practice in elections. The Commission, having taken strong cognisance of such matters, has issued guidelines for chief election offices in every state to stay conscious of misleading use of social media as a way to negatively influence the public.
The election commission has proposed amendments in the Representation of People Act, 1951, to provide therein that publishing and abetting the publishing of ‘paid news’ for furthering the prospect of the election of any candidate or for prejudicially affecting the prospect of the election of any candidate be made an electoral offence under chapter-III of Part-VII of Representation of People Act,1951 with a punishment of a minimum of two years imprisonment. A series of guidelines were incorporated further in 2008, to constitute a Media Certification and Monitoring Committee (MCMC) in each district during the election period to take up the additional task of keeping a check on the cases of electoral fraud at the time of campaigns. The Election Commission of India through its different initiatives have taken serious note of cases during elections. In the statutes that govern the Elections in the Indian subcontinent, certain formalities have also been laid out that are intrinsic to the registration of candidates who participate in the elections as representatives of the people. ECI issued Instructions with respect to the use of Social Media in Election campaigning on 25th Oct 2013
i. Information to be given by candidates about their social media accounts.
Candidates are required to file affidavits in Form-26 at the time of filing of nominations. Para 3 of this Form requires that the email ID of the candidate if any, and authentic social media accounts of candidates.
This information should be furnished in the said Para 3 as follows: –
“My contact telephone no.(s) is/are…………………., my email ID (if any) is …………., and my social media accounts (if any) are…………………………..”
ii. Pre-certification of Political advertisements on social media
Every registered National or State political party; and every contesting candidate, proposing to issue advertisements on television channels or Social Media, will have to apply to the ECI, or the designated officer for pre-certification of all political advertisements on electronic media before the publication. It should be ensured 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.
iii. Expenditure on campaigning through the internet including social media websites
According to Section 77, subsection (1), of the RP Act, 1951, every candidate is required to keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him. The Hon’ble Supreme Court of India had directed in Common Cause Vs. Union of India in 2005 that political parties should also submit a statement of expenditure of elections to the ECI and such statements are required to be submitted. This, among other things, shall include payments made to internet companies and websites for carrying advertisements and also campaign-related to operational expenditure on making of creative development of content, operational expenditure on salaries and wages paid to the team of workers employed by such candidates and political parties to maintain their social media accounts etc.
iv. Application of MCC to content on the internet including social media
The Model Code of Conduct remains in place during the elections in respect of political parties and candidates; it is clarified that the provisions of MCC shall apply to the content being posted on the internet, including social media websites, by candidates and political parties. The Commission instructed the CEOs of all States/UTs to be interactive and accessible with the stakeholders through activating their official accounts on social media platforms like Facebook, Twitter, etc.
Considering the regulatory need for social media content and in the interest of transparency and a level playing field in the elections, ECI has updated its guidelines and instructions in its Handbook for Media for conducting free & fair elections. The Commission in furtherance has duly authorized CEOs of states, as well as Officers to establish a complaint redressal mechanism, relating to the Social media misuse, and have been granted powers to take expedited actions wherever necessary, to curb the campaign fraud and social disruptions.
Imposition of restrictions severely upon the Representatives of a Democracy would marr the key objective of the principles of representative democracy. To avoid the contingencies and create a balance, NBSA has issued guidelines to ensure that broadcast of news and current affairs programmes and all other content on news channels are being objective, accurate and duly verified:
- It is obligatory for the News channels to give out necessary legitimate information about electoral events, political parties/candidates as per rules and regulations laid down under The Representation of the People Act 1951 and by the Election Commission of India.
- In cases of political affiliation to a particular political party or a candidate, the Channels must publicise such information. Moreover, biases must be restricted while reporting to avoid single-facet news that might cause social harm to the other political groups.
- News broadcasters shall endeavour to ratify before publishing any piece of vague information, and must avoid rumours without a firm belief as to the true facts. Any candidate/political party that becomes a victim of defamation by such news channel on account of a rumour, should be afforded prompt correction, and where appropriate granted an opportunity of reply.
Furthermore, ECI proposed recommendations for Amendment to Section 126 of the RP Act 1951.
The Committee submitted its report on 10th January 2019 and proposed to the Ministry of Law & Justice, some amendments to this Section.
“126. Prohibition of public meetings during a period of forty-eight hours ending with an hour fixed for conclusion of poll. – (1) No person shall-
(b) publish, publicise or disseminate any election matter by means of print or electronic media; or through intermediaries or through any other means;
Explanation. – For the purposes of this Section, –
(a) “disseminate” includes publication in any “print media” or broadcast or display on any electronic media.
(b) “election matter” means any matter intended or calculated to influence or affect the result of an election…’
(c) “electronic media” includes internet, radio and television, including Internet Protocol Television, satellite, terrestrial or cable channels, or internet/digital versions of Print Media, mobile and such other media either owned by the Government or private person or by both;
(e) “print media” includes any newspaper, magazine or periodical, poster, placard, handbill or any other document;”.
Global outlook towards regulation
Some countries take the view that there is no special need for regulation during elections assuming that the plurality of media is itself a sufficient guarantee that there is an adequate platform for public debate. They highlight the utmost importance of guarding the freedom of Press and opinion, and consider the claims for regulation a threat to the liberty and ideal democracies. Social media has the power to reach the masses and distribute information, with everyone creating awareness, scrutinizing the powerful and exposing mismanagement and corruption. Contrary to those, the flexible democracies and states take the view that some kind of regulation impacting the media, or self-regulation is necessary to hold the media accountable for the misleading pieces of information, owing much to their dependence upon those political groups which provide them monetary assistance. In some cases, regulations are imbibed voluntarily within the Press by listing out the framework and channels of study. However, in order to ensure a healthy media is established upon trustworthy ethics, it requires a regulator, such as the Government to keep checks upon its activity.
According to the Venice Commission, Guidelines on Political Party Regulation (2010) money in elections is regulated in order to ensure campaigns are:
► Fair: to prevent improper influence (and ensure the independence of parties) on political decisions through financial donations;
► Clean: to ensure all political parties have an opportunity to compete in line with the principle of equal opportunity; and
► Clear: to provide for transparency in the expenditure of political parties.
The overarching objective of campaign regulation is to protect the integrity of elections, ensure they are free and fair, and not captured by a narrow range of interests.
The United Kingdom at present, has no legislative prohibitions or control over the practice of Social Media for the conduct of electoral processes. The conduct of the media is controlled by the internal guidelines prepared by the media houses. The British Broadcasting Corporation (BBC) drafted their own internal guidelines which help the media corporations to maintain impartiality and fairness in the elections and also does not influence the views of the voters, which is also maintained in Section 6 of Ofcom Broadcasting Code which provides for detailed regulations regarding impartiality by the media houses during elections and referendum periods.
The Representation of Peoples Act, 2002 includes Section 66A in the original 1983 Act. The Section provides for prohibition on publication of polls and states that no person shall report any forecast as to the result of the elections or views of the voters after they cast their respective votes before the polling closes and this section applies to both parliamentary and local elections. Furthermore, the publication of exit polls is also prohibited during voting for European Parliamentary elections. As observed in Finland, The Council for Mass Media is a self-regulating independent body, which developed guidelines for journalists with the aim of supporting the responsible use of freedom of speech. The Council promotes good journalistic practice and considers complaints on breaches of professional ethics, including during the election campaign. It enjoys the investigative role when violations pertaining to the freedom of media are brought to its attention. The Council’s decisions are then published on its website, including the complete decision if the complaint is upheld. Such verdicts tend to be very influential, and media journalists largely act within the legal and ethical norms.
This variation of approaches complicates any attempt to produce comprehensive recommendations on the regulation of media and social media during elections as specific cultural and local factors will need to be borne in mind. Some of the most developed democracies and exemplary open societies (Sweden, Norway or France, for example) have different levels of restrictions of political advertising, including even the total ban of it, while some other countries (Denmark, for example) do not allow advertisements with political messages to be broadcast during the election campaigns, where a total ban is considered necessary to protect voters from inappropriate influencing. Regulatory frameworks with provisions on equal treatment of political parties by the media exist in many countries. Nevertheless, in practice, there are generally shortcomings and some frameworks are insufficient. The basic frameworks in western countries include the principle of fair, balanced and impartial treatment of political parties by the broadcast media.
Despite the existence of legislation incorporating such a principle, it is nevertheless also recognised that the internal rules of broadcasters and professional codes of conduct, that is, all types of self-regulatory practices, will be the factors that largely determine how the election is actually covered. Twitter said it would ban most political ads, excluding those aiming to increase voter registration. Twitter’s chief executive Jack Dorsey argued that political ads offer a larger megaphone to those with deeper pockets than their opponents and that they have helped spread harmful content. By contrast, Facebook exempted political ads from its usual fact-checking procedures, sparking outrage among its critics. Allowing politicians and parties to make statements without scrutiny makes Facebook’s anti-disinformation efforts look hollow.
In light of such dimensions of media, the need to regulate the availability and accessibility to the data over social media has gathered momentum. Election regulation is usually interpreted as the act of restriction to the political candidates/parties in pursuance of their electoral strategies, however, since it is an accepted fact that campaigning is an integral process of elections; care must be taken in such furtherance. Social media platforms, nonetheless, often offer systematic ways of campaigning as well as providing low-cost opportunities, thus the focus must remain upon the creation of a well-equipped stimulus to provide for a smoother presentation over social media, rather than curbing the extent of using these platforms. Restrictions on content are justified by the impact of broadcast media, which produces an information scarcity that needs to be rationed.
Election campaigns should be publicly funded while expressing concern about the phenomenon of paid news. Historically, the usage of offline media revolved around the hassle about the expansion of content- availability and transmission of data to a larger mass of people, with key objectives of generating voluminous data with accessibility to the larger section. With the shifts in the generation, the onset of the Online platform, the Social Media, has turned the tables. The regulation of data and information, at present, pertains to the difficulties in handling huge amounts of data, to regulate the content sharing with no effective tool to freeze the immense knowledge bases. Availability of accurate, objective and complete information to enable citizens to exercise their franchise, based upon a well-informed choice, is the basic requirement of free and fair elections.
Hence, the importance of the State regulating social media also cannot be denied. As long as the interests of people are considered and adopted, there can be no objection to government regulation however draconian measures such as censoring i.e. encroaching upon the civil rights of the people viz. freedom of speech and expression etc. must be strongly avoided. Evidently, both ECI and Social Media platforms are taking actions in curbing fake news, hate speeches, but we should remember that it is easier said than done, because of the sheer volume of information that is generated and so quickly it spreads, and bad past experiences in Social Media platforms. A single initiative or measure cannot improve the situation; thus, a combination of efforts is required, which can be initiated by adopting measures such as self-regulation by the media itself. If such regulations fail, recourse must be taken from the guidelines proposed by professional bodies such as academics, independent researchers, civil society groups and regulatory agencies like the Press Council of India, the Information Commission, the Election Commission of India and the Telecom Regulatory Authority of India (TRAI). In this scenario, the need has arisen to fast-track the checks upon journalism in the mainstream media in our society. If it is left unchecked then it can undermine democratic processes in our country which is the largest in the world in terms of the electorate.
Government agencies lack sufficient machinery and often use a ham-handed approach to enforce while mandating Internet shutdowns, which proves to invoke the principles of the Constitution. We need to recognise the desire is not to impose an ‘authoritarian internet shutdown’, rather an acknowledgement to protect and safeguard democratic integrity. Given the widespread view that restrictions on content outside of the parameters of international rights principles are unacceptable in a democratic society, I recommend that election regulations should be focused on achieving outcomes by setting goals for intermediaries about what they are expected to do and how they should do it procedurally. The regulator should not seek to determine what is and is not said on social media platforms – in fact, they should protect the freedom of speech of citizens and political actors during an election event. But they should set out clearly the democratic and speech outcomes necessary to ensure a free and fair election central to which is the right to free expression.
The relevance of social media being a democratic yet politically influential platform owes much to the participation of the Public. Therefore, the social media platforms of prominent political personalities must involve active input/ participation from the mass to initiate harmonious negotiations and confidence-building. It is the hallmark of every democracy to be all-inclusive and at the same time, for the needs and political aspirations of people, and such principles must be kept at the forefront while administering the processes of governance.