In 2021, out of 4.66 billion active internet users, 4.20 billion utilise social media. In India, Facebook has 270 million members, making it the most popular social networking site1. Close involvement with the electorate is the most crucial strategy for winning an election, and having an internet presence that ensures a larger reach provides you a competitive advantage. Political parties are using data analytics to better assess voter mood, allowing them to target individual voters with personalised messaging. The strategy is to connect web surfing patterns with publicly available election datasets, resulting in data points such as age, caste, religion, political convictions and other factors that can be used to improve advertising and marketing strategies. Individuals’ data privacy is at risk as a result of this profiling, and the digital world needs to be regulated.
Political consulting and advertising corporations have developed systems to collect voter data and turn it into useful campaign materials. This issue is exacerbated by the fact that passive users are unaware of what they are being subjected to, and the electoral campaigning process has gotten opaquer since the introduction of data analysts. Because the entire business of collecting personal data is still unregulated and proprietary in nature, the voter’s informational sovereignty is in grave jeopardy.
Voter data is routinely published as part of election laws in most countries and can be used to learn about people’s opinions, interests, and concerns. This information is then used to profile them and anticipate their preferences for internal strategic campaign talks, as well as to send tailored political adverts. Facebook likes have been used in studies to infer personality traits, political views, and other characteristics.
The transition to data-driven elections is based on the premise that understanding the voter’s political preferences and beliefs will aid in the development of a successful communication plan.
It is quite difficult to trace the procedures employed by such companies to examine an individual’s personal life and intimate facts. Because of the growing number of political enterprises that make extensive use of the right to freedom of speech and expression, this threat has grown immediate. The business of profiling potential voters has flourished. As a result, when it comes to election campaigning, there are some exceptionally well-crafted strategies.
The loss of informational liberty has caused substantial damage to the country’s democratic nature. At the same time, if demagogues utilise this ability to promote bogus news and propaganda, it might have catastrophic consequences.
Despite the fact that the digital revolution is being lauded all over the world, regulatory measures in many areas of its influence have only been reactive. The contours of this information age are unlimited; as a result, a data protection framework must be responsive to the scale of a variety of data consumption. In terms of data use, India’s voting process is becoming highly modern.
Several Indian political parties hired Cambridge Analytica, a data mining and analytics business, in 2018.2 As a result of this occurrence, many people are calling for data protection authorities to offer recommendations on the use of personal data for electoral activities.
The Election Commission of India, created under Article 324 of the Constitution, has established a set of guidelines for political parties and candidates to follow during elections, known as the Model Code of Conduct.
The MCC is activated the day the ECI announces the elections. It provides a level playing field for all political parties and ensures that the state apparatus is not utilised for electoral reasons, with the goal of preserving a healthy and peaceful atmosphere conducive to the smooth holding of elections.
Fake news, misinformation, online abuse, and weaponized algorithms have undoubtedly impacted elections around the world, making it all the more important to assess the adequacy of existing laws and regulations to cope with the consequences of such digital propaganda.
The need to include digital media in election rules derives from the fact that social media rarely bears responsibility for its content and simultaneously provides visibility and anonymity. In India, the Election Commission of India agreed in 2019 to monitor political parties’ and leaders’ social media posts in order to discover potential MCC violations during the Lok Sabha elections.
Following this, the ECI consulted numerous digital media companies, including Facebook, and the outcome was that anyone wishing to run political advertising on Facebook in India had to first validate their name and location, as well as provide more information about who paid for or published the ad. Facebook then furnished the ECI with the expenditure details.
Furthermore, the Election Commission had stated that all provisions of the MCC will apply to anything posted on social media by candidates and political parties. For the purpose of examination, a social media specialist was also designated under the district and state-level media certification and monitoring committees (MCMC).
Display of any election matter through means, such as television or similar apparatus, within the period of 48 hours before the hour designated for the conclusion of polls in a constituency is illegal, according to section 126 of the Representation of the People’s Act (RoP), 1951. However, there is no explicit regulation that governs its use on social networking platforms.
The sole pseudo-concrete effort towards managing digital media during election season is the “Voluntary Code of Ethics for the General Elections 20193“, in which corporations and participants agreed to create a platform for political marketers to submit pre-certified commercials.
According to the code, which took effect on March 20, 2019,4social media platforms must legally notify the ECI of any potential violations of section 126 of the Representation of People’s Act, 1951, and other electoral regulations via a notification mechanism.
- Platforms for providing training to ECI’s nodal officer on the aforementioned notification processes and goods.
- Within three hours of receiving a report of a breach of section 126 of the RoP Act, platforms must acknowledge and/or process the legal orders (as per the Sinha committee recommendations).
- Participants must commit to promoting transparency in paid political advertisements, including the use of pre-existing labelling and disclosure technology.
- The code was intended to improve transparency in paid political advertisements, but because it has a clear legal basis (thus the pseudo-concrete), it risks being abused or utilised solely to benefit the participants.
The ECI constituted the Umesh Sinha committee (also referred to above) in January 2018 to study “social media expansion” and made suggestions on Section 126 of the Representation of People’s Act in light of the growing social media. In January of 2019 year, the committee submitted its report. Among the suggestions were5
- Amending Section 126 (1) of the RoP Act to require print, electronic, and intermediary media to observe a “campaign silent period.”
- It was advised that during the period of silence, celebrities should refrain from attending news conferences or giving interviews about the election.
- Social media platforms should agree to policies to prevent their platforms from being abused.
- Any content that violates the 48-hour no-campaigning rule must be removed by internet service providers and social media behemoths within three hours of the electoral commission providing instructions.
- All political commercials must be clearly labelled as such and must be pre-approved by a content monitoring commission designated by the European Commission.
Given that digital media is today’s most prevalent and widespread form of media that cuts across borders, it was determined that it is the responsibility of the Election Commission of India (EC) to keep a check on candidate and party promotions, as well as their means and limits of promotion, and that the EC must be equipped with the necessary powers to ensure this.
With the ever-present possibility of Indian elections being influenced by its neighbours, whether through fake news, paid advertisements, or the disclosure of sensitive information, which could weaken Indian political discourse and the biasness of social media, i.e., content regulation only in selected countries, enforcing the voluntary code on social media becomes more important. It’s easier said than done, because the process is riddled with stumbling blocks.
Because social media is for everyone and by everyone, anyone can publish or share whatever they want, making election commission regulation a difficult task. Only those issues that have been brought to ECI’s attention can be appropriately addressed.
Another disadvantage of social media is the lack of verification; content shared on social media is frequently unverified, and so such disinformation or fake news runs the danger of duping voters into believing incorrect information.
While the government is attempting to keep such erroneous material under control in good faith, social media platforms have been criticised for exercising their right to free speech. As a result, this is a very slippery slope, and the government must proceed with caution.
In addition, India’s legal structure is unprepared to deal with efficient control of digital propaganda. We lack a comprehensive data protection framework, making it easy to gain access to limited data and use it to deceive and manipulate voters.
The maiden step towards tackling digital propaganda should be to bring in a data protection framework, the same was rightly conveyed by Justice DY Chandrachud,6
“―Formulation of a regime for data protection is a complex exercise which needs to be undertaken by the State after a careful balancing of the requirements of privacy coupled with other values which the protection of data sub-serves together with the legitimate concerns of the State.”
–Per Chandrachud, J., in Puttaswamy, (2017) 10 SCALE 1 at para 179.
as well as the creation of an impartial commission to investigate the exploitation of sensitive information by political parties during elections. In this context, the Justice Srikrishna Committee’s inputs could be considered. The report observes that, when it comes to the security of personal data,7
“Currently, the law does little to protect individuals against such harms in India. The transfer of personal data (defined as ―sensitive personal data or information‖) is governed by the SPD Rules.
While the SPD Rules were a novel attempt at data protection at the time they were introduced, the pace of development of the digital economy has made it inevitable that some shortcomings have become apparent over time “
Election-specific procedures are required to effectively deal with disinformation and paid advertisements. The Law Commission of India recommended measures to combat paid online propaganda in its report. The proposals make it a disqualifying electoral offence to pay or be paid for the transmission of political information related to elections without making the requisite disclosure.
These actions could be a modest component of the social media and democracy course correction. The Internet, which was once seen to be a utopian arena where democratic principles could be realised, is now being twisted to undermine these very objectives. To restore it, democracies all around the world must act immediately.
In the Facebook vs. Delhi Assembly Case (Delhi riots case), the Supreme Court of India highlighted the threats to elections and the voting process posed by social media manipulation. Like a two- sided coin, social media platforms such as Facebook have undoubtedly increased worldwide freedom of expression, but one cannot ignore the fact that they have also created a platform for fake news, disruptive messages, and ideas.
Taking note of the incidence, it was opined that Entities like Facebook to remain accountable to those who entrust them with such power because while social media, on the one hand, is enhancing equal and open dialogue between citizens and policy makers, on the other hand, it has become a tool in the hands of various interest groups who have such vast powers must necessarily come with responsibility.
The peddling of extremist views into the mainstream as a result of the spread of misinformation (because people do not tend to verify information communicated via such digital platforms) threatens the very foundations of democracies around the world, making it all the more important to prevent such social media manipulation.
The problem is not exclusive to India, but rather to the entire world. Unregulated micro-targeting has an equal impact on the United States and European countries. During the 2016 US Presidential election, there was a lot of talk about Russian meddling through Facebook. As a result of the 2016 US Presidential elections, the European Union created a proposal called the Digital Services and Digital Markets Act in 2020, which spelled out requirements for digital platforms to follow.
Cambridge Analytica was found guilty of illegal tactics while harvesting personal data from millions of Facebook users by regulators in the United States and Brazil.
Similarly, nations such as the United States, Australia, and the United Kingdom have taken tentative attempts to control platforms like as Facebook and WhatsApp. Australia has proposed laws requiring Facebook to compensate publishers for the use of their news stories.
The controversy around curbing freedom of expression reappeared with the recently introduced draft of the data protection law, the Personal Data Protection Bill, 2019. Any data protection regulation in the Internet age must consider the possible influence of social media businesses in affecting public opinion.
The current draft gives the government the authority to alert social media intermediaries as significant data fiduciaries if their user base exceeds a specific threshold and their actions are likely to have an impact on electoral democracy. This clause warrants significant consideration in order to guarantee that digital tools are used to improve democracy through citizen engagement, rather than for the purpose of mining personal data for voter targeting.
The legality of processing personal data in these data-driven elections is determined by each country’s data protection regulations. Political parties are immune from the application of data protection laws in Canada and Australia. Private firms that provide services to political parties, on the other hand, will be required to adhere to the overarching privacy framework.
Political parties and private organisations offering services to such political parties are not differentiated in the EU’s General Data Protection Regulation or India’s proposed data protection framework. In brief, the proposed legislation in India applies to both political parties and private businesses that may be participating in the process.
The legal grounds for processing personal data, notice requirements, approach to publicly available personal data, data principal rights (specifically, rights against automated decision making and right to object) and oversight over data processing are some of the key provisions that need to be analysed within the context of targeted communication for election campaigning.
Constituency electoral rolls are public documents in India, and parties can access them under the Registration of Electoral Rules, 1960. When personal data is not directly obtained from an individual, India’s proposed data protection framework mandates that the individual be notified. It’s vital to note that, just as such data may be abused to discriminate on the basis of political affiliations and preferences if it’s used to conduct targeted communications, voter databases can be abused to discriminate on the basis of their political affiliations and preferences.
Clear and enforceable criteria for the drafting of the privacy notice are required to remove the ambiguity.
Before data collection may begin, a legal basis for the collection must be established. The legitimate reasons, according to the draught data protection laws, include consent and processing for justifiable purposes.
The consent of the subject, compliance with a legal duty, or execution of a task carried out in the legitimate interest of one of the actors are the most significant grounds for processing personal data in the electoral context under GDPR. The permissible grounds of permission and processing based on legislation are included in India’s proposed data protection framework. Instead of processing for legitimate interests, the framework allows for processing for acceptable reasons.
Instead of “legitimate interests,” India’s planned data protection framework uses the word “reasonable purposes.” The lawful ground of legitimate interests under GDPR and the lawful ground of reasonable purposes in India have comparable balancing tests. The most significant distinction, particularly in the context of election campaigns, is the Indian framework’s explicit inclusion of processing of publicly accessible personal data as one of the reasons under processing for legitimate purposes.
If the lawful basis of legitimate interests is to be exercised in the context of election campaigning under GDPR, the fact that personal data is publicly available is considered one of the numerous elements in conducting the balancing test. Processing publicly accessible personal data may be considered as a stand-alone purpose under India’s proposed framework under the legitimate premise of processing for reasonable reasons.
Despite the fact that the proposed data protection framework makes reference to the majority of globally recognised privacy principles, the duties arising from those principles have not been changed to reflect the changing environment of personal data processing.
The lack of essential data primary rights and the limited protection afforded publicly available personal data indicates a lack of discussion about the difficulties involving contextual disclosures, subsequent processing of personal data, profiling, and other issues.
It is acknowledged that the data protection authorities’ advice powers have resulted in worldwide recommendations on election campaigns and data protection. The absence of definition of critical data protection responsibilities, on the other hand, may run counter to the Puttaswamy decision’s spirit of protecting individuals’ privacy.
The EC is clearly empowered exclusively by one piece of legislation, Article 324 of the Indian Constitution. It’s the only thing the EC has going for it. To conclude the EC’s efforts to combat digital media, it is fair to argue that self-regulation is insufficient for social media platforms to keep an eye on material, and the EC is having difficulty enforcing its powers due to a lack of specific rules to deal with forthcoming challenges.
It is urgent that India’s electoral laws be rewritten into a new act that gives authorities the authority to deal with the ever-growing area of digital media and its issues in order to ensure that elections are held in a truly fair and competitive manner, and that the true purpose of democracy is served fairly. A forward-thinking regulatory framework is required, with both supervisory processes and competent law enforcement measures in its arsenal.
The author is a student at National Law University, Jodhpur .Views are personal
1 https://www.statista.com/statistics/284436/india-social-network-penetration/ accessed 25 November, 2021,accessed November 29, 2021.
2 Times of India, ‘Congress BJP trade charges over links with disgraced firm Cambridge Analytica’, https://timesofindia.indiatimes.com/india/congress-bjp-trade-charges-over-links-with-disgraced-firm-cambridge- analytica/articleshow/63398048.cms , accessed 20 November, 2021.
3.https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1586297#:~:text=IAMAI has assured the Co mmission,for the General Elections 2019. Accessed 23 November, 2021.
5 https://pib.gov.in/newsite/PrintRelease.aspx?relid=187412 , accessed November 28, 2021.
6 (2017) 10 SCC 1
7 Committee of Experts under the Chairmanship of Justice B.N. Srikrishna, ‘A Free and Fair Digital Economy Protecting Privacy, Empowering Indians’ https://www.meity.gov.in/writereaddata/files/Data_Protection_Committee_Report.pdf accessed November 28, 2021.