A Vintage SC Order on Political Advertising May Open a Pandora’s Box for Silicon Valley | The Wire

Op-Eds by Judicial Reforms · January 28, 2019
Author(s): Prashant Reddy

As the Lok Sabha elections draw closer, all eyes are on the Silicon Valley and the role that its companies will play in influencing the Indian electorate.

However, it may also be time to flip that question and ask whether the upcoming general elections will influence the manner in which American tech giants operate in India.

The reason this question even comes up for discussion is a 2004 Supreme Court order that laid down a rigid, pre-censorship regime for political advertising through electronic resources.

The origins of the case lie in a decision of the Election Commission of India (ECI) in 1999 to prohibit all political advertisements on electronic media prior to elections. That decision was challenged before the Andhra Pradesh high court on the grounds that the ECI lacked the powers to ban political advertisements and that the ban violated the fundamental right to free speech under Article 19(1)(a) of the Constitution.

Chief Justice M.S. Liberhan in his judgment struck down the ban as unconstitutional. When the matter was appealed before the Supreme Court, the Ministry of Information and Broadcasting brought in an entirely new argument, citing a particular rule in the Cable Television Network Rules, 1994 that prohibited political advertisements from being broadcast on cable television.

The specific rule reads as follows:

(3) No advertisement shall be permitted, the objects whereof, are wholly or mainly of a religious or political nature; advertisements must not be directed towards any religious or political end.

It should be remembered that this rule was framed in 1994, in the early days of broadcast television in a country still smouldering from the flames of communal violence. Regardless, the constitutionality of this rule was highly suspect, given the blanket ban it imposed on political speech, which most commentators would classify as the most important type of speech.

The Supreme Court appears to have been aware of the constitutionality issue but rather than strike down the rule, a bench comprising of Chief Justice V.N. Khare and Justices S.B. Sinha, Justice S.H. Kapadia passed an order concocting a draconian pre-censorship regime for all political advertising through electronic media.

As per this order, all political advertising would have to be submitted to the Election Commission (or any bureaucrat designated by the EC) for approval before it could be broadcast on electronic media. According to the court, any appeals against the decision of the bureaucracy would lie before only it.

This may have been the first time that judges of a democratic country vested the powers to censor political speech with unelected bureaucrats. To make it adequately clear that it was using brute power and not legal reasoning to justify its order, the court declared that its ruling was made under Article 142 of the Constitution – which allows the Supreme Court to pass any orders it thinks necessary to serve justice.

There was no attempt by the Supreme Court to engage with the constitutionality of the prohibition contained in the impugned rule. The court also declined to engage with the prickly constitutional issues in relation to pre-censorship on speech despite having divergent views on the issue in its earlier precedents.

That ruling of the SC has held the field since 2004 and the ECI declared in 2013 that the ruling would apply to even social media and that all advertisements on social media will be subject to pre-censorship.

In its 2013 guidelines, , the ECI stated the following:

Since social media websites are also electronic media by definition, therefore, these instructions of the Commission contained in its order No.509/75/2004/JS-1/4572 dated 15.04.2004 shall also apply mutatis mutandis to websites including social media websites and shall fall under the purview of pre-certification. You are, therefore, requested to ensure that no political advertisements are released to any internet-based media/websites, including social media websites, by political parties/candidates without pre-certification from competent authorities in the same format and following the same procedures as referred in the aforesaid orders.

In its recently announced political advertising policy for India, Google has made it mandatory to submit a pre-censorship certificate from the ECI in order to run political advertisements on its platform. In doing so, Google has become the first Silicon Valley company to comply with the ECI’s instructions.

The question for Google now is whether it plans on complying with similar pre-censorship laws under the Cinematograph Act and vet all video advertisements on YouTube? This is a relevant question because with respect to advertisements, Google and YouTube are publishers, not intermediaries for third party content.

Silicon Valley has generally managed to evade tough regulation directed at the broadcast industry by arguing that the internet is a completely different medium from traditional media. By accepting the pre-censorship regime meant for electronic media in the case of political advertising Google has provided its critics with a useful precedent to hold against it even when Google claims it is a platform and not a publisher.

Paid ads versus political content

What is also currently not clear is whether the pre-censorship regime is limited to paid advertisements and not content posted by political parties on their social media accounts. Is the ECI going to certify every social media post, be it video or content, on these platforms? There does not appear to be any rational basis for this distinction. If political parties cannot be trusted with mass communications, why trust them to broadcast content on their own pages or channels that are hosted by social media platforms?

The ECI needs to provide an answer to this question. If it cannot, it should take actions to ensure parity of treatment between political advertising on social media and traditional media.

The other big issue is the manner in which the ECI plans to regulate political advertising on the University of WhatsApp. As I have argued earlier in these pages, WhatsApp is no longer a personal messaging service, it is a mass communication service. A party worker can communicate a political message to five groups, which each group containing 256 persons, in a matter of seconds.

As per a recent Time story, Indian political parties are using WhatsApp for mass messaging, often with hate filled messages. How should the law classify these messages sent to 1,280 persons without any cost? Can it even be called an advertisement? Most likely not. In that case, it would be legal for political parties to simply send out messages on WhatsApp without any requirements for pre-censorship certificates. What then is the point of the ECI regulating political advertisements on other platforms.

Even presuming the ECI wants to have some kind of regulation targeted at WhatsApp, how does it plan to regulate an end-to-end encrypted platform? What happens when bad actors in the political ecosystem start spreading fake news in the 48 hours prior to elections when campaigning is supposed to stop? These are not hypothetical questions and the ECI has been grappling with similar issues in the past. Let us not forget that rumours on WhatsApp led to the Muzaffarnagar riots in 2013. Those riots are suspected to have polarised western Uttar Pradesh and partly contributed to the BJP’s sweep of Lok Sabha seats in that region. How is the ECI going to crack the whip in these cases?

Some of these questions may be answered by the Bombay high court since a PIL has been filed before it seeking regulation of political advertisements on social media. Going by the remarks from the bench, it would appear that the Silicon Valley and the ECI are in for some tough questions.

It doesn’t help their case that the lawyer for the petitioners is Abhinav Chandrachud, the author of Republic of Rhetoric – a book that traces the history of free speech in India. Given the general suspicion that Indian judges reserve for political parties in India, it is very likely that this case will end badly for the Silicon Valley. If that happens, a precedent for regulating Silicon Valley platforms in other scenarios will be set.

Prashant Reddy is a senior resident fellow at the Vidhi Centre for Legal Policy, New Delhi

Originally Published – https://thewire.in/business/sc-order-ec-political-advertising-elections

About Prashant Reddy:

Prashant Reddy T. is a Senior Resident Fellow with the Judicial Reforms team. His areas of interest include judicial reforms, intellectual property law and drug regulation. He has a B.A.LLB (Hons.) degree from the National Law School of India University and a LLM degree from Stanford Law School. Prashant was awarded the Tata Scholarship by the J.N. Tata Endowment for pursuing his LLM. He is the co-author of ‘Create, Copy, Disrupt: India’s Intellectual Property Dilemmas’ which was published by Oxford University Press. He has been published in peer reviewed academic journals in India and abroad, as well as in newspapers, national magazines and digital platforms such as the Hindu, Indian Express, Business Standard, Economic Times, Caravan, Open, Scroll, Wire, Hoot, Bloomberg Quint and Live Law. He previously blogged for SpicyIP which is India’s leading blog on intellectual property law. Link to full bio