Secret Campaigns and Masked Messages

Every election season in India reignites a familiar concern: the pervasive influence of financial resources on the democratic process. While the Election Commission of India (EC), in conjunction with the judiciary and various state apparatuses, consistently underscores the link between monetary power and electoral outcomes, a significant loophole persists.

This blogpost examines that loophole: the unchecked power of surrogate advertising on social media platforms and uncovers the systemic failures that enable political parties to exploit these gaps, perpetuating financial inequalities in the democratic process. Surrogate advertising refers to a situation where individuals or groups place advertisements on behalf of a political party or candidate without explicitly disclosing their affiliation with that party or candidate. This is mostly intended to promote or support the political party while appearing to be independent or unaffiliated, thereby bypassing rules and regulations that govern political advertising and campaign finance. argue that despite existing laws like Section 171H of the Indian Penal Code, which aim to limit unauthorized political expenditures, these regulations are not effectively applied to social media platforms – undermining the fairness of Elections in India. This blog post highlights the disparity in regulation between traditional and social media advertising, and argues for the necessity of legislative action to mandate transparency through Disclaimers.

Law on political advertisement

Before delving deeper, it is essential to grasp the fundamentals of the campaign financing system in India. Here are two pivotal points to note:

1. Indian law imposes a cap on the maximum expenditure a candidate can incur for their campaign, either directly or through authorized agents.
2. There is no cap on the expenditure political parties can incur for general advertisements that do not directly promote a specific candidate. Both of the points include expenditure on online-advertisements (including social-media ads), which is accounted for within the overall expenditure limits.

Section 171H of the Indian Penal Code expressly prohibits any individual from expending more than 500 rupees on advertisements or publications promoting a candidate without obtaining the candidate’s explicit consent. This provision is aimed at restricting third parties from indirectly promoting a political candidate or party through advertisements funded without disclosing their real identities or affiliations.

The legislative intent behind Section 171H was to ensure that political parties are held accountable for all disseminated information and to prevent the utilization of undisclosed financial sources for funding election campaign advertisements. By restricting such expenditures and requiring transparency, the law aims to prevent surrogate advertising practices that contribute to an uneven playing field in elections.

While a logical inference that could follow is that expenditures for online advertisements in support of a political candidate must not exceed the 500 rupee threshold, this is not the case in practice.

In 2019, reports indicated that at least 23 surrogate advertisers had placed 34,884 advertisements for which they paid Facebook more than 58.3 million rupees ($761,246) to promote the BJP or denigrate its opposition, without disclosing their real identities or their affiliation with the party. This pattern repeated itself during the 2024 elections, where in the month of March alone, surrogate ads worth ₹3.7 crore targeted BJP opponents on Facebook. All this money remains unaccounted for, blatantly violating the restrictions imposed by Section 171H and creating an uneven playing field in the Indian political landscape. The pressing question is: why is this happening despite the existing restrictions?

Disparity in regulation: traditional vs. social media advertising

The EC does not extend Section 171 H of the IPC to political advertisements by third parties over social media, as revealed by an RTI filed by The Reporter’s Collective. This loophole allows third parties working in tandem with political parties to make significant ad purchases on their platforms, thereby enabling political parties to evade campaign finance restrictions and responsibility for unlawful content.

Despite the clear stipulations of Section 171H IPC, which makes no distinction between advertisements on Social Media and traditional mediums like television, where expenditure limits are indeed imposed. Section 171H stipulates:

“Whoever without the general or special authority in writing of a candidate incurs or authorizes expenses on account of the holding of any public meeting, or upon any advertisement, circular or publication, or in any other way whatsoever for the purpose of promoting or procuring the election of such candidate, shall be punished with fine which may extend to five hundred rupees….”

Going by the wording of the statute, it does not restrict itself to physical or televised advertisements. The statute includes all advertisements without specifying the medium.

It may be argued that since this is an old provision, drafters of this provision could not have anticipated the advent of social media and the purchase of social media advertisements back then. However, the EC clarified its stance in a 2013 order, stating that social media was considered part of the electronic media and that advertisements on these platforms should be regulated similarly. Nevertheless, the EC acknowledged that it was still deliberating on how to manage content posted on social media by individuals other than the candidates and their parties, particularly in cases where such content could be reasonably connected to the election campaigning of political parties and candidates.

Through this notice, the EC implicitly acknowledged the existence and differential management of two classes of social media advertisers: (1) political party candidates or their authorized agents who spend on ads for themselves, and (2) unauthorized individuals who spend on ads for specific candidates.

If the EC does not apply the same regulations to both groups—with the primary object being the same, that is, intending to regulate social media ads and ensure a level playing field among candidates—it must justify this disparity under Article 14 of the Indian Constitution (Saurabh Chaudhari (Dr.) v. Union of India), which guarantees equality. The Commission must demonstrate:

1. Any classification must be found on intelligible differentia (a reasonable and logical basis for classifying individuals into distinct groups)
2. The differentia must have a rational connection to the object sought.

The question of whether the absence of a maximum limit on advertisements by surrogate advertisers on social media satisfies the aforementioned twin test has never been addressed by any court.

Presumably, both criteria can be met since there are practical challenges emerging from the unregulated nature of political advertisements disseminated via social media platforms. Generally, political advertisements require pre-certification from the EC for mediums such as newspapers and televisions. However, social media lacks such oversight.

The absence of a pre-certification mechanism appears prima facie compatible with the decentralized and privately regulated nature of social media platforms. The sheer volume of advertisements on social media, coupled with the simultaneous posting by numerous third parties, renders it logistically unfeasible for the EC to pre-certify each advertisement. Hence, pragmatic and logistical constraints might justify the absence of a cap on surrogate advertisements, potentially meeting the twin criteria delineated.

So, is there nothing that can be done to address this issue?

Disclaimers as Informational Tools

Disclaimers are a powerful regulatory tool in this regard, which requires the speaker and funder of an advertisement to identify themselves in the advertisement itself. This is common practice in some countries, where political advertisements are accompanied by a disclaimer that says, “I am [Name] and I stand behind this message” or “This advertisement is sponsored by [Name]”.

Disclaimers in political advertisements serve as crucial informational tools for voters, offering transparency about the backers of a campaign message. This transparency empowers voters to assess the ad’s content and the candidate it represents. Knowing the source of support can significantly influence a voter’s perception of the candidate’s stance on various issues. For instance, if a pharmaceutical company were to finance ads supporting a candidate, voters could reasonably deduce the candidate’s position on healthcare policies. In fact, France implemented legislation mandating tech companies to disclose the funding sources and amounts for political ads, extending this requirement to all content relevant to public discourse.

Call for legislative action and formalization of principles

As previously noted, while the EC guidelines mandate the disclosure of expenditure on social media advertisements by political parties and candidates, they fall short in adequately addressing ads purchased by third parties—referred to as ‘supporters’ or ‘well-wishers’ of the party who aren’t directly linked to either the party or the candidate. The Model Code of Conduct (Laws drafted by the EC) lacks sufficient regulation in this area. Consequently, social media platforms have intervened by implementing their own company policies. These policies  require paid ads to include disclaimers, remove ads lacking disclaimers, maintain  public archives of such ads, and document the expenditure incurred by the purchaser.

However, the efficacy of this self-regulation  as a ‘soft-law’ measure is questionable. Two main issues arise:

Firstly, there is an absence of a statutory definition in Indian Law for ‘Political Advertisements’, which leaves social media companies with a notable degree of latitude in delineating which advertisements fall under this category. This regulatory vacuum affords platforms considerable discretion in crafting their own parameters to ascertain the political nature of an advertisement. Consequently, there is a risk of overlooking advertisements that are inherently political but do not align with the platforms’ idiosyncratic definitions.

Secondly, there is a lack of a legally mandated standardized format for disclaimers, which exacerbates the issue. A study by Illuminating highlights instances where the provided disclaimer fails to accurately identify the purchaser of the ad. This deficiency not only hampers transparency efforts but also introduces complexities in discerning the true origin and intent behind political advertisements.

On a brighter side, a recent Supreme Court Judgment lands us at safe spot. In Association for Democratic Reforms vs. Union of India (Electoral Bonds Judgment) in March 2024 the Court rendered electoral bonds, a campaign finance mechanism permitting substantial anonymous donations to political entities, null and void. The Court, affirming the populace’s entitlement to transparency in political funding, declared that citizens possess the right to ascertain the identities of financial benefactors directly contributing to political parties. This must logically extend to the disclosure of entities indirectly bolstering political parties by procuring advertisements on their behalf.

For instance, consider Facebook’s Ad Library. Although the Ad Library presently enforces a specialized authorization procedure for individuals posting political ads through voter ID cards, driving licenses, and passports, it does not disclose beneficiary and payer information in political ads for the general audience. As a result, the concept of identity disclosure remains confined to the initial layer, omitting disclosure to those viewing the ads. Therefore, it is imperative for the legislature to crystallize the principles enunciated in the Electoral Bonds Judgment into legislation. This would oblige social media platforms to mandate advertisers to fully disclose their legal identities in all advertisement campaigns – which would serve as a crucial informational tool for voters.

Conclusion

In conclusion, while mandating disclaimers for online political ads will not comprehensively address issues such as paid influencers or coordinated groups exploiting regulatory loopholes by making small ad purchases, implementing some regulation is preferable to none.

As highlighted, the EC must collaborate with social media platforms and take actions: First, defining uniform standards for political advertising, and second, implementing disclaimers. These measures are essential for ensuring accountability in online political advertising in India.

Closing these loopholes is not merely a legal duty but a moral imperative. It is about reclaiming democracy from the shadows and ensuring every citizen’s voice is heard equally in the halls of power. By taking these steps, we can begin to restore trust and transparency in the electoral process.