How Facebook lobbied the Election Commission ahead of the 2019 elections in India

“Working closely with both Indian, foreign social media companies and a prominent trade body IAMAI, we drove consensus to adopt a self regulatory code… Avoiding fresh legal obligation was our priority and we achieved it with minimal process changes at our end.” — Facebook Internal Documents

Facebook successfully lobbied against regulation from the Election Commission of India (ECI) ahead of the 2019 general elections to adopt a voluntary code instead, internal documents from Facebook and the ECI (seen by MediaNama) reveal.

The ECI was initially keen on introducing a new regulatory framework for platforms, which would involve proactive removal of content and disabling political ads during the silence period, the documents revealed. Facebook’s efforts to influence the ECI were first reported by The Intersection and the Hindustan Times on November 22.

Internal documents from Facebook leaked by whistleblower Frances Haugen, alongside a report from the Sinha committee formed by the Election Commission, shed light on Facebook’s efforts to resist further legal obligations in India, as well as the process behind the ‘voluntary code of ethics’ that was later adopted by social media platforms in India.

Part 1: The Sinha Committee is formed

We were invited to attend the public hearing of the Sinha Committee… We attended all the sessions (other US tech companies skipped) and maintained our stand on being intermediaries governed by the IT Act 2000. — Facebook Internal Documents

In January 2018, the ECI appointed a committee led by Umesh Sinha to look into enforcing the 48-hour silence period before voting in light of new digital technologies like social media. The committee was supposed to prepare a report with recommendations to amend the Model Code of Conduct and Section 126 of the Representation of People Act 1951 to enforce the silence period. To prepare this report, the committee engaged with key stakeholders including Facebook.

The final report was never made public. A copy of the report was obtained by security researcher Srinivas Kodali through an RTI application and seen by MediaNama.

In the first meeting of the commission, “there was general consensus that a general code of conduct for all media during elections, could be developed,” the Sinha committee report said.

On June 4, 2018, Snehashish Ghosh, the Associate Manager of Public Policy at Facebook, attended a meeting of the committee, according to the committee report. Ghosh informed the committee about Facebook’s community standards and enforcement mechanisms. The committee made a few requests to Facebook:

1. To increase the number of reviewers
2. Provide a window/button on Facebook for the election machinery to flag complaints
3. Block all political advertising during the last 48 hours
4. Collect expenditure made by political parties for the election machinery to monitor expenses
5. Develop a mechanism to deal with repeat violations by the same user

Ghosh told the committee that these possibilities will be examined, and “suggested that representatives of IAMAI could also be called for their views.”

Part 2: IAMAI enters the picture

“We ensured our primary trade body, IAMAI was involved to negotiate on behalf of industry so that no bad recommendation was made. Eventually, we managed to get a text which was in line with intermediary protection for tech platforms.” — Facebook Internal Documents (emphasis ours)

The Sinha committee made several recommendations in an early draft of its report which IAMAI resisted. Here are a few prominent recommendations that IAMAI opposed, according to its submission to the committee attached in the final report:

• Banning political ads: The committee proposed recommending that the commission issue directives to social media companies not to allow political ads at all during the 48 hours of silence period.
  

  IAMAI’s response: Preventing any political ads from being uploaded would require intermediaries to carry out proactive monitoring which is explicitly excluded in the IT Rules 2011, the body told the committee. It recommended a provision under which the Commission could report any such content for removal.

  The end result: The proposal did not make it onto the committee’s final list of recommendations or the voluntary code of ethics developed by IAMAI.

• Awareness campaigns: The committee wanted social media platforms to initiate communication campaigns to inform users about impermissible conduct during elections and requirements under the silence period.
  

  IAMAI’s response: IAMAI suggested that any such communication campaigns should be voluntary.

  The end result: The recommendation asking social media platforms to conduct communication campaigns did not make it to the final list of recommendations.

• Labeling politically-motivated content: The committee proposed asking social media platforms to clearly label “political content which is intended or likely to promote or prejudice the electoral prospects of a particular political party or candidate.”
  

  IAMAI’s response: “Individual platforms need to be allowed to decide the nature and prominence of these labels/disclosures for advertisements alone, as content labeling would breach their non-monitoring obligations under the intermediary liability law.”

  The end result: The recommendation asking social media platforms to label political content furthering a party’s agenda did not make it to the final list of recommendations.

In its internal memo, Facebook boasted about having diluted the regulatory requirements made of platforms:

“The consultations which began in July 2018 lasted 8 months with the ECI initially keen to introduce a new regulatory framework for platforms which would have required them to pro-actively monitor & remove content including disabling all ads during the silence period. They also wanted us to pro-actively inform users on Silence period related Election laws for every round of polling. Working closely with both Indian, foreign social media companies and a prominent trade body IAMAI, we drove consensus to adopt a self regulatory code… Avoiding fresh legal obligation was our priority and we achieved it with minimal process changes at our end.” — Facebook Internal Memo (emphasis ours)

In response to queries sent by MediaNama, a Meta spokesperson said that the voluntary code of ethics “builds on an ongoing dialogue we’ve had with the commission” and that “it includes measures like a dedicated communications channel for notice and take down after receiving valid legal order, processing of valid requests in the blackout period ahead of voting and voter education efforts.”

Part 3: The code to protect against the court

With the help of the voluntary code of ethics and continued engagement with ECI, we were able to avoid an onerous and prescriptive direction from the Bombay High Court.
– Facebook Internal Documents (emphasis ours)

The document mentioned how Facebook was able to avoid a strict judgement by the Bombay High Court by working with the ECI to adopt the voluntary code of ethics. The timeline of events in the Bombay HC PIL suggests that the voluntary code served a critical purpose in avoiding a harsh judgement:

October 2018: Pune-based lawyer Sagar Suryawanshi filed public interest litigation under the Bombay High Court urging the court to direct the ECI to ensure that paid political or election-related content should be prohibited on Facebook, Twitter, YouTube, and Google 48 hours before election day.

January 24, 2019: The petition was heard and the ECI sought time to file an affidavit. The matter was adjourned till January 31, then February 4, and then February 18, after the ECI repeatedly sought more time, according to the court transcript.

March 15, 2019: The Election Commission told the Bombay HC that it will “issue directions … with respect of publishing information/advertisement via social media during the prohibited period of 48 hours before the date of polling.”

March 20, 2019: Five days later, IAMAI released its voluntary code of ethics for ‘all participating social media platforms.’ Both Facebook and WhatsApp were signatories to the code. The Election Commission issued a press note announcing the voluntary code of ethics.

March 29, 2019: The Election Commission told the Bombay HC that the press note with the voluntary code of ethics “be treated as a decision/direction of the Election Commission of India.” The court accepted the commitments made under the code.

In a statement responding to a Hindustan Times report on Facebook’s involvement in the Sinha committee report, the Election Commission of India said:

“ECI’s committee headed by Mr Sinha consisted of all important stakeholders. However, social media companies were neither members or signatories… The Committee was set up by the ECI for the overall review of the provisions of section 126 of the RP Act, keeping in view the advent, advancement and multifid increase in media mode and its impact on election campaigning. It made a set of recommendations… (and) included the need for some guidelines for intermediaries operating in India and a stringent and dedicated mechanism for promptly taking down posts violating section 126.”

Part 4: The voluntary code of ethics

A first for Facebook, the Policy team led the engagement with all major social media companies and the Election Commission of India to work out a voluntary code of ethics for the elections. This was a significant development which helped our family of apps to continue working within the existing legal framework without attracting any new election law or bad regulation. — Facebook internal memo (emphasis ours)

What the code includes: Prepared by the IAMAI as a substitute for a regulatory framework from the Election Commission, the voluntary code of ethics incorporates quite a few recommendations from the Sinha committee report:

1. Notification mechanism: Platforms must develop a notification mechanism for the ECI to legally notify them of potential violations of Section 126 of the Representation of the People Act, 1951 and other electoral laws.
2. Action within 3 hours: For reported violations of Section 126 of the RP Act – which prohibits political parties and candidates from campaigning in the two days before voting – platforms will acknowledge and/ or process these legal orders within 3 hours (as per the Sinha Committee recommendations). For other legal requests, platforms will act upon them “expeditiously” based on the nature of reported violation.
3. Appoint dedicated personnel: Platforms committed to “creating/opening a high priority dedicated reporting mechanism” for the ECI and “appoint dedicated person(s) / teams” during elections to contact and exchange feedback for acting upon legal requests from the ECI.
4. Pre-certification for political advertisers: The code requires platforms to provide a method for political advertisers to furnish pre-certificates issued by ECI or its Media Certification & Monitoring Committee (MCMC) for running election-related ads. It requires that platforms “expeditiously” act on paid political ads which do not have a certification, as the ECI notifies.
5. Communication between the ECI, IAMAI, and platforms: Platforms will update the ECI (via the IAMAI) on measures they have taken to prevent abuse of their platforms, pursuant to legal requests by the ECI.
6. Awareness and education campaigns: The members will carry out information, education, and communication campaigns to build awareness including electoral laws and other related instructions.
7. Training nodal officers: Platforms will train their nodal officers to the ECI on their products, and on the mechanism for sending requests to the platforms as per procedure established by law.

What the code excludes: Here are some significant requirements that were left out:

• Ban on political ads: The code excluded a blanket ban on political advertising during the silence period, which was initially suggested by the Sinha committee and sought by the petitioner under the Bombay HC.
• Pro-active monitoring of content: The code also excluded any obligation of platforms to monitor content that would be likely to influence votes during the silence period. This was also part of the initial suggestions made by the Sinha committee.

Also read:

• ECI Asks Social Media Firms To Follow Voluntary Code Of Ethics Ahead Of State Polls: Report
• Social Media Platforms And IAMAI Enact ‘Voluntary Code Of Ethics’ For Elections 2019; Some Challenges
• Social Media Companies Raise Concerns Over Election Commission’s Voluntary Code Of Ethics

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