Facebook recently said in a statement that the company had spent more than 18 months assessing “risk” across its platforms to help ensure that the Lok Sabha election was free from interference, both foreign and domestic.
In a post on its website, Facebook’s managing director and vice-president, India, Ajit Mohan said the company had focussed on key areas “including blocking and removing fake accounts; fighting the spread of misinformation; stopping abuse by domestic actors; spotting attempts at foreign meddling; and taking action against inauthentic coordinated campaigns”.
While Facebook’s statement on what it has done ahead of the polls could be viewed as a suo motu initiative, the larger question of whether and how exactly social media platforms could be regulated under Indian law in the context of their apparent vulnerability to be used for disseminating fake news and manipulating opinions in the crucial run-up to the election, remains a rather grey area according to legal professionals.
And late in March, on a public interest litigation petition seeking the imposition of curbs on social media use to ensure “the purity of election process”, the Bombay High Court directed that social media platforms would be expected to follow the voluntary code of ethics that had been developed by the Internet and Mobile Association of India (IAMAI) and had been accepted by the Election Commission.
Nonetheless, existing legal provisions may be less than adequate to address the unique challenges posed by social media.
Former Supreme Court judge Asok Kumar Ganguly said Section 126 of the Representation of the People Act (RPA) was incapable of regulating social media. “Section 126 is inadequate to deal with evolving problem of fake news and misinformation. [Section] 126 was enacted in 1996, when the problem did not surface,” he said.
“We know scientific developments take place fast, whereas legislation is always slow,” the former judge said. Section 126 places an embargo on the publishing and broadcasting of content that is likely to affect the election only when the content is being aired with 48 hours or less to go before voting.
‘Does not apply’
Chief Election Commissioner (CEC) Sunil Arora has acknowledged the Act’s limitations in terms of empowering the EC to act against social media. “Section 126, at the moment, does not apply to print media … social media, that is the law,” Mr. Arora had admitted, while releasing the poll schedule. A proposal to amend the law had been sent to the Law Ministry, he said.
However, the volume of fake news spread via social media is massive. Facebook said it had removed more than 1.5 billion fake accounts globally in April-September 2018, a jump from the 1.3 billion such accounts it had purged in the previous six months.
Besides churning out massive volumes of fake content, it is now evident that individual operators on social media are trying to influence minds and voting patterns.
Legal options are limited for now, Justice Ganguly said. “The voluntarily developed code by the stakeholders is the only alternative for free and fair elections, and the court can always fill the gaps in law by providing suitable directions,” he said.
But does the “voluntarily developed code” really work? Facebook, which counts India as its biggest market with 300 million users, asserts it does.
To check the authenticity of content on its platforms in India, the company appointed seven fact-checkers, who, Facebook’s public policy director in India Shivnath Thukral said, follow “international norms of fact-checking” to ensure credibility of the process.
Expenditure check
But former CEC S.Y. Quraishi contends that there are provisions to curb the misuse of social media.
“Using the existing provisions, a candidate or a party’s expenditure can be monitored by the EC. The political advertisements also need to be cleared by the Commission,” said the former poll panel chief. “It is a continuing cat and mouse game,” he added.
However, he acknowledged the logistic challenge. Even hundreds of media monitoring committees, “decentralised and spread across the country may not be enough” to monitor the material churned out every second on social media. “It is an evolving process,” Mr. Quraishi said.
Alok Prasanna, senior fellow, Vidhi Centre for Legal Policy, Bangalore, flags another issue — freedom of expression. “How much you control and whether that infringes one’s right to talk or campaign on social media ... is not for the EC to decide. Thus, the debate has to take place on another level relating to intermediary liability,” he said.
Jurisdiction was also a concern. “All of these social media companies are based outside India … regulating them is an issue. Perhaps it is better to talk to them [and] work with them within the law of the land to ensure fair elections,” Mr. Prasanna opined.
Referring to the Bombay High Court order and the three-hour response time that social media firms had been allowed to remove flagged items, Mr. Prasanna pointed to a provision in Germany.
“In Germany, if any content is posted on any platform by any individual [that] violates law and if the particular social media platform does not remove it... then the platform would be liable for such violation. We are yet to have anything of that sort.”
