UK parliament moves to enact a law that seeks to empower its TEC to deal with online political advertising generated abroad
@prashanthamine
Mumbai: Although the Election Commission of India (ECI) has after the Supreme Court of India (SC) order of April 13, 2004, put in place guidelines on political advertising, it has subsequently laid down certification guidelines for political advertising on March 19, 2009 and for use of social media for political campaigning on October 25, 2013. The ECI merely seeks details of social media accounts of contesting candidates. Sources in ECI in Maharashtra do admit on conditions of anonymity that there is no robust law in place to deal with political advertising or political content generated off-shore or that is generated abroad.
In contrast the United Kingdom (UK) Cabinet Office, Chole Smith, MP and Minister of State for the Constitution and Devolution has recently on August 12 sought to move a consultation on proposed legislation that seeks to empower The Electoral Commission (TEC) and law enforcement agencies to deal with political advertising and political disinformation on social media, not just within the UK, but also content developed in foreign countries as well.
The consultation process as it is called in the UK regarding enactment of the law by the UK parliament began on August 12 and is to end on November 4, 2020. The legislation is titled “Transparency in digital campaigning – Technical consultations on digital imprints”. Move comes after much criticism that followed the alleged Russian interference in the UK’s Brexit Referendum Vote of June 23, 2016.
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The consultation notes that in the last 20 years – new channels, digital tools driven by internet and data insights have developed. “Half of all political advertising budgets is spent on digital activity. However, there is growing concern about transparency of the sources of political campaigning online; which is starting to have a negative impact on trust and confidence in our elections and democracy”, states Chole Smith, MP and Minister of State for the Constitution and Devolution.
The “Digital Imprints” under the proposed UK law has been defined as “The requirement for digital election material to explicitly show who is promoting it and on whose behalf”. This is further categorized as “paid” and “unpaid” election material.
The note points out that, “online digital campaigning is relatively cheap (based on the numbers it reaches) and data insights means campaigners can micro-target and adapt their message to the voter, helping them to cut through better. Traditional campaign leaflets are less targeted and cost more to reach the same number of people”.
At present there are legislative provisions in the UK that deal with elections, referendums and campaigning – the ‘Representation of the People Act, 1983’, the ‘Political parties, Election and Referendums Act, 2000 (PPERA) and ‘Protecting the Debate: Intimidation, Influence and Information’ in July 2018.
The proposed law argues that “digital technology has transformed campaigning with an increasing risk that the provenance (origin) of campaign material is less clear” and allowing voters to see who is behind digital electoral material will help them to assess the credibility of the campaign messages and make an informed choice on the arguments presented”.
“Protect the UK from foreign interference and to counter disinformation. We (the UK government) are bringing forward a new legislation to provide the security services and law enforcement agencies with the tools they need to disrupt hostile state activity. We established the Counter Disinformation Unit (CDU) to improve our capabilities to identify and respond to harmful false information online”, states the UK cabinet office.
The legislation seeks to develop an online media literacy strategy, to create a platform and intermediaries – who fail to remove infringing content, run the risk of increasing liability. In terms of imposing penalties, The Electoral Commission can impose a fine of maximum amount of £ 20,000 (Pound Sterling) per offence (that comes to Rs 19.52 lakh).
The most important part of the legislation is that in respect of ‘Territoriality’ – “Digital election material will be subject to the regime (law) regardless of the country it is being promoted from”.
Just like the ECI regulations, in the UK, the TEC mandates that the name and address of the printer of the document, the name and address of the promoter and name and address of the person on behalf of whom the material is published (who is not the promoter) has to be imprinted on the election material. But when it comes to digital social media, the similarity apparently ends there.
The SC had in its April 13, 2004 order mandated that advertisements of political nature telecast over Television channels and cable networks need to have certification from the competent authority for the telecast of the same. The process of certification for political advertising was laid down by the ECI on March 19, 2009.
It was only on October 25, 2013 that the ECI spoke about use of social media in election campaigning. Five types of social media were identified – collaborative projects (Wikipedia), blogs and microblogs (Twitter), content communities (You Tube), social networking sites (Facebook) and virtual game worlds (Apps).
It was thereafter, in subsequent elections, that it was made mandatory upon contesting candidates to give detailed information regarding their Email ID, Telephone Numbers, Mobile Numbers and Social Media accounts. The social media websites were also recognised as electronic media. The ECI simply extended its April 15, 2004 order to be applicable to websites including social media websites and would come under the purview of pre-certification.
Expenditure on campaigning through the internet was to include social media websites. The Model Code of Conduct (MCC) shall apply to content on the Internet including social media. The provisions of the Cable Television Networks (Regulations) Act, 1995 were also sought to be invoked. However, the existing provisions do not cover hostile disinformation campaigning originating from foreign countries and mechanisms to disrupt such anti-national activities and take appropriate legal actions.
