India's Electoral Laws are Ill-Equipped to Deal with Digital Propaganda

From having measures to prevent immoral micro-targeting of voters to tracking social media expenditure, India is woefully unprepared.

‘Fake news’, online abuse and weaponised algorithms are now routine hallmarks of elections all over the world.

With four major state elections and India’s general elections around the corner, it is an apt time to examine whether our laws and institutions are equipped to deal with the fallout of such digital propaganda.

Uncovering empirical evidence of deliberate ‘electoral manipulation’ as a result of online propaganda may be difficult, particularly in comparison to the effects of traditional forms of propaganda and mass media. Indeed, various studies have reached conflicting conclusions on the impact of online disinformation on civic participation and elections. 

Nevertheless, its effects are palpable in how it shapes online communities and political discourse.

Firstly, online propaganda relies upon use of personal information and behavioural targeting to filter political information being received by its recipients, thereby amplifying information likely to appeal to voters and suppressing that which would not. Data brokers like Cambridge Analytica exploit this personal information to offer targeted propaganda to electorates around the globe.

Secondly, propaganda on social media can be distinguished from traditional media in its ability to rapidly spread information without the publisher being held to account. Unlike traditional media platforms, online platforms rarely bear legal responsibility for their content. This combination of virality and lack of accountability has made platforms like WhatsApp important sources of political propaganda during elections in India and elsewhere, simultaneously offering anonymity (for the source) and visibility (for the information).

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Thirdly, online propaganda weaponises the computational elements used in platforms. ‘Bots’ are software that manipulate the visibility of propaganda by gaming the algorithms platforms use to prioritise content (for example, by flooding Twitter with hashtags) or to drown out dissenting voices by engaging in targeted online abuse at scale (a strategy widely known to be employed by the ruling BJP).

We must be cautious in attributing major political upheavals or electoral decisions to a singular cause like disinformation or online propaganda, but their influence in deepening political prejudices, skewing political opinion and diluting informed political discourse should not be understated. And our laws and institutions must be up to the challenge of countering this phenomenon.

Weak legal framework

A number of problems with the present legal framework hinder effective regulation of digital propaganda in India.

Firstly, the lack of a clear data protection framework allows unrestricted access to personal data, which can be manipulated by political agents to spread targeted disinformation and propaganda. The present data protection law has limited applicability to political parties or to data brokers that market personal data at a massive scale. This enables the creation, for example, of WhatsApp groups based on voter lists coupled with phone numbers and caste, gender and other sensitive information to target voters with propaganda without their consent.

Secondly, election law in India is not equipped to deal with digital propaganda. The Election Commission, which is the constitutional authority for regulating state and national elections, is relying on online platforms to self-regulate and censor ‘illegal’ content. For example, it has ‘partnered’ with Facebook to censor all ‘election-related’ content during the no-campaigning period of 48 hours prior to elections and to monitor ‘fake news’ and ‘inflammatory content’. However, the scope of the regulated content is vague, and in the absence of a clear legal basis, these platforms can censor or amplify certain information without accountability or transparency. This in turn exacerbates the power imbalances between platforms and their communities and further entrenches their stronghold over the democratic process.

The Election Commission has ‘partnered’ with Facebook to censor ‘election-related’ content during the no-campaigning period and to monitor ‘fake news’ and ‘inflammatory content’.

Moreover, there is a legal vacuum when it comes to dealing with paid political propaganda. The EC’s attempt to tackle this issue using existing electoral finance laws, by disqualifying a BJP MLA for using ‘paid news’, was struck down by the Delhi High Court, which categorically stated that the EC lacks the power to regulate the content of any media in the absence of a specific law.

Online propaganda often blurs the distinction between harmful and legitimate or legal expression, making regulation a fraught process. The backlash against Union government’s recent attempts to curtail ‘fake news’ aptly demonstrates the need for a more nuanced undertaking to tackle online propaganda through legal reform.

How tackle digital propaganda

To begin with, the Central government must bring in a robust data protection framework and empower an independent body to look into the misuse of personal information by political parties and candidates during elections. The recent inputs by the Justice Srikrishna Committee provide a valuable starting point for such reform.

Secondly, election-specific reforms must be introduced to deal with disinformation and paid advertisements. These approaches are an extension of existing election finance regulations, which are aimed at increasing transparency into the electoral process. Social media platforms should be made to disclose the source of funding for advertisements and actively promoted political content to their community, along with information on why the advertisement was being targeted at a specific user.

Although Facebook has indicated that it would implement such measures in India, it is unclear when and whether this will take place. Further, even as platforms should be encouraged to remove disinformation and harmful content like online abuse related to elections, the terms and processes must be transparent, tailored to local conditions, and accountable to an independent public agency.

Also read: What to Believe — And Not Believe — About Fake News in India

Similarly, measures to prevent ‘paid for’ online propaganda can be introduced to the Representation of the People Act, as mooted by the Law Commission of India. This includes making it a disqualifying electoral offence to pay for, or be paid for, circulation of political information relating to an election without providing necessary disclosures. The provision must be narrowly drawn and must include exemptions for political information coming from a disclosed source owned or controlled by the party or the candidate.

These measures can form a small part of the course correction for social media and democracy. The Internet, once expected to create a utopian space for realising democratic ideals, is being perverted to undermine these very values. Democracies all over the world must act now to reclaim it.

Divij Joshi is a research fellow at the Vidhi Centre for Legal Policy, Bengaluru.