Election Commission urges “voluntary restraint”; asks FB, Twitter, Google, ShareChat, TikTok and BigoTV to lay down code of ethics for elections

Social media platforms Facebook, Whatsapp, Twitter, Google, ShareChat, TikTok and BigoTV and the IAMAI will lay down a code of ethics for election-related operational details by today evening. In a meeting, Chief Election Commissioner Sunil Arora “exhorted the Social Media Organizations, who are formidable force-multipliers” to come up with a code similar to the Model Code of Conduct for the current election “in the immediate context” and “a last document in the long run”. Arora said the MCC is a similar outcome of “consensus evolved amongst the different Political Parties and ECI” and it has “obviated the need for application of more stringent provisions of law”. The Lok Sabha Election are set to begin in exactly three weeks.

Election Commissioner Ashok Lavasa noted that the meeting was “momentous” for the “evolution of behaviour of Social Media platforms”. He said that “voluntary restraint is a hallmark of civilized society and works as effectively as any regulation”. The Election Commission made several suggestions and comments at the meeting on election-related issues regarding platforms:

1. Placing onus and responsibilty on platforms, and suggestions for platforms: Lavasa said platforms should consider a clear clause on “users’ voluntarily agreeing not to misuse social media platforms for election or political purposes”. Election Commissioner Sushil Chandra suggested that platforms “proactively” consider punitive action against users for misuse of platforms as deterrent. Platforms should voluntarily undertake education and communication about unlawful usage of platforms, the body said.
2. On political ads and pre-certification: With regard to pre-certification, the ECI said there must be transparency and a repository of political ads containing sponsor expenditure and targeted reach must be maintained. The commission raised concerns about Google’s delay in launching its political ads library (Facebook’s and Twitter’s ads libraries are currently online). TikTok told the ECI that it does not run ads in India and has no official political party accounts on its platform. Its worth noting that the IAMAI has clarified to the commission that the onus of pre-certification is on advertisers and not on intermediaries, citing a 2004 SC judgment that said political parties and candidates must apply to the EC before issuing TV ads. Pre-monitoring would require platforms to forego legal safe harbor, IAMAI said.
3. “Social media platforms useful for curbing misinformation”: Chandra said that “the role of social media platforms in spreading both information and curbing misinformation cannot be underestimated” and that a “participative approach from the social media platforms would greatly help ECI meet its objectives”.
4. Content takedown during silent period: Company representatives presented their notification systems for receiving content takedown requests from the ECI during the 48-hour silent period, per the Indian Express. However, the ECI and platforms did not reach a conclusive and explicit agreement on the time period that within which companies must response to take down notices. The ECI had earlier suggested a 3-hour time limit, but the IAMAI has said that it could either agree to abide by the notices “as soon as possible” or “explain a time-bound manner” why the content could not be taken down.
5. The platforms and ECI have already exchanged a list of designated emails of officers for sending/receiving takedown notices.

Unresolved: what a political ad is, and legal provisions for content takedowns

The following issues were reportedly on the agenda of yesterday’s meeting, but its unclear whether they were considered or whether they will be part of issues addressed in the code of ethics.

1. What is a paid political ad?: The issue of whether a “political advertiser” includes those who pay to boost and promote posts created by someone else (other than a political party) remains unresolved as of now. The IAMAI had sought clarity on this, and asked the ECI to expedite an FAQ on the norms for what a “paid political advertisement” is. ShareChat had also sought clarification from the ECI on “what constitutes a political advertisement, which entities are bound by the obligations to ensure pre-certification, and time frame from when such obligations apply on candidates, parties, and (if relevant) third parties”.
2. Citing specific legal provisions for takedown notices: After the EC’s first takedown to Facebook last week, the company pointed out that the commission had not cited any specific legal provision that the said content had violated. IAMAI’s Subho Ray said that a legal order would help establish the legality of the notice, and give legal backing in case the order is challenged in court.

Faceboook’s India public policy director Shivnath Thukral, Snehashish Ghosh, and Natasha Jog represented the company; Twitter and Google’s India public policy heads Mahima Kaul and Chetan Krishnaswamy represented their companies. ShareChat’s policy head Berges Malu and Bytedance India’s (TikTok) legal counsel Apurva Mehta attended the meeting.