Political Ads: Bombay HC Directs ECI To Decide On 3-Hr Response Time For Removal Of Flagged Content On Social Media During Elections [Read Order]

A division bench of Chief Justice NH Patil and Justice NM Jamdar has been hearing the PIL filed by advocate Sagar Suryawanshi who sought regulation of political ads on social media, especially 48 hours before polling day.

Facebook, Twitter and Google

The respondents, Facebook, Google and YouTube (owned by Google), submitted before the court that they were not considering the matter in an adversarial manner and would cooperate with the Election Commission of India in ensuring that free and fair elections are held in India. They also ensured the court that only pre-authorized Indian advertisers will be allowed to run political ads on their platform.

After Twitter submitted its policy on political advertising, it was contended by the petitioner that Twitter follows separate policies in the United States and India with regard to political ads. Twitter International Company filed an application seeking to be impleaded as a party because Twitter Inc does not handle affairs in India, Twitter International does.

Election Commission

On Friday, Election Commission of India placed a press note issued on March 23, 2019. The press note refers to general election 2019 and State Legislature Assembly Election. It also refers to media coverage during the period referred in Section 126 of the Representation of People's Act of 1951. A Voluntary Code of Ethics for the General Election 2019 evolved by the IAMAI was also placed on record.

ECI's counsel Pradeep Rajagopal submitted that the said press note can be treated as a direction of the Election Commission of India. In an earlier hearing, the Election Commission of India had informed the bench that they had accepted the voluntary code of ethics developed by the IAMAI.

Voluntary Code of Ethics

i. Participants will endeavour to, where appropriate and keeping in mind the principle of freedom of expression, deploy appropriate policies and processes to facilitate access to information regarding electoral matters on their products and/or services.

ii. Participants will endeavour to voluntarily undertake information, education and communication campaigns to build awareness including electoral laws and other related instructions. Participants will also endeavour to impart training to the nodal officer at ECI on their products/ services, including mechanism for sending requests as per procedure established by law.

iii. Participants and the Election Commission of India (ECI) have developed a notification mechanism by which the ECI can notify the relevant platforms of potential violations of Section 126 of the Representation of the People Act, 1951, and other applicable electoral laws in accordance with procedures established by law. These valid legal orders will be acknowledged and/ or processed within 3 hours for violations reported under Section 126 as per the Sinha Committee recommendations. All other valid legal requests will be acted upon expeditiously by the Participants, based on the nature of the reported violation.

iv. Participants are creating/opening a high priority dedicated reporting mechanism for the ECI and appoint a dedicated person(s)/teams during the period of General Elections to interface with and to exchange feedback as may assist with taking expeditious action upon receipt of such a lawful request, following a due legal process, from the ECI.

v. Participants will provide a mechanism for relevant political advertisers, in accordance with their obligations under law, to submit pre-certificates issued by ECI and/ or Media Certification & Monitoring Committee (MCMC) of the ECI in relation to election advertisements that feature names of political parties, candidates for the 2019 General Elections. Further, Participants shall expeditiously process/action paid political advertisements lawfully notified to Participants by the ECI that do not feature such certification.

vi. Participants will commit to facilitating transparency in paid political advertisements, including utilising their pre-existing labels/ disclosure technology for such advertisements.

vii. Participants will, pursuant to a valid request received from the ECI, via Internet and Mobile Association of India (IAMAI) provide an update on the measures taken by them to prevent abuse of their respective platforms.

viii. The IAMAI will coordinate with the Participants on the steps carried out under this Code and the IAMAI, as well as participants, will be in constant communication with the ECI during the election period.

Final Order

Petitioner's counsel Dr Abhinav Chandrachud submitted that under sub-clause (iii) of the said code of ethics, the amount of time for removal of objectionable content on social media is set at 3 hours which is not realistic for online media as something goes viral on the internet within minutes. It would frustrate the object of placing an embargo of 48 hours, Chandrachud said.

The court noted that the concerns expressed by the petitioner's counsel were not unfounded. The bench said-

"The counsel for the petitioner has cited examples from other countries, where according to him such a content is required to be taken down in 15 minutes.

Considering the speed at which sometimes information spreads and travels on the Internet (in common parlance – go viral), we cannot say that the concern expressed by the petitioner is entirely unfounded. This issue, however, will have to be looked into by the Election Commission. The Election Commission will take a decision in respect of three hours' period as above. The decision be taken within a period of one week from today."

Read the Order Here