How Facebook jumped without a hoop

Good morning! This is a special edition of The Intersection in collaboration with The Hindustan Times. Our co-founder Venkat Ananth has been invited to join the international media consortium that is reviewing the disclosures made by Facebook (now Meta Platforms) whistleblower, Frances Haugen. This is the first in a series of stories that we will publish based on the Facebook Papers.

In the run-up to the 2019 general elections, Facebook managed to convince the Election Commission of India (ECI) to scuttle its original intention of introducing stiff social media regulations and settle for a voluntary code of ethics, avoiding additional legal obligations. The social media company fronted the Internet and Mobile Association of India (IAMAI) to push its view and achieve consensus over the rules, Facebook’s internal documents spirited out of the company by whistleblower Frances Haugen show.

The ECI, the documents show and former government officials independently confirmed, wanted a strict social media regulatory framework, perhaps not a fresh legislation (or an amendment to an existing one) in time for the elections.

The EC spokesperson said that it wasn’t familiar with Facebook’s internal report, but the claim doesn’t seem to be correct. “Political advertisement on electronic media including social media is always prohibited during the silence period. Section 126(1)(b) of R.P. Act 1951 prohibits display of any election matter (including political advertisement) by means of television or similar apparatus (electronic media) during the period of 48 hours ending with the hour fixed for conclusion of poll,” the EC spokesperson told The Hindustan Times. “And as per the VCE (voluntary code of ethics), platforms had committed to act upon the violations of section 126 of R.P. Act, 1951. For this they had created a dedicated reporting mechanism for ECI under the provisions of VCE.”

A Meta spokesperson, in an emailed response to The Intersection and The Hindustan Times said, "Promoting election integrity in India isn’t something we can do alone. Ahead of 2019 general elections, we joined other social media companies in a voluntary code of ethics for the general elections with the Election Commission of India (ECI)."

The spokesperson added, “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. This builds on the ongoing dialogue we’ve had with the commission, as well as with the campaigns and political parties. The Voluntary Code was applicable for the recent state elections as well.”

Election integrity

In July 2018, the ECI set up a committee led by the then deputy election commissioner Umesh Sinha to suggest such a framework. In its draft report, accessed by The Intersection and The Hindustan Times, the committee recommended that “the Commission may issue directions to social media agencies to ensure that political advertisements are not uploaded on their platforms during the prohibited period of 48 hours mentioned in Section 126”.

While the original scope of the committee, which submitted its report in January 2019, was to “look into social media regulation during the poll period”, it eventually zeroed in on the last 48 hours before the actual voting, or what is known as the “silence period”. The recommendations contained in the draft report are previously unreported.

On 29 May 2019, five days after the Indian general elections drew to a close, officials from Facebook’s civic integrity team shot off a memo to the rest of the company. It was an after-action report of sorts, detailing everything the company had done during the polls; from proactive monitoring to taking action on content flagged by the ECI and driving the Voluntary Code of Ethics (VCE) that governed social media platforms.

It was a big relief for the Menlo Park, California-based company which was just coming off a bruising scandal involving the controversial election management company Cambridge Analytica. Facebook (now Meta Platforms), the memo shows, was determined to avoid onerous legal obligations. It wanted to do the minimum to be able to dodge any backlash later, former Facebook officials told The Intersection and The Hindustan Times.

Outlined in part one of a document titled “India Elections: A Case Study”, it included, among other platform-specific goals such as fighting misinformation and fake news, the prevention of “any bad regulation or law for social media on election integrity”.

These details are from disclosures made to the Securities and Exchange Commission and to the US Congress in a redacted form by Haugen’s legal counsel. The redacted versions received by Congress were reviewed by a consortium of news organizations, including The Intersection, which is publishing a series of stories based on the documents and in partnership with The Hindustan Times.

No, ads please

Facebook, multiple people confirmed, aggressively pushed back against the EC’s plan to require it to disable ads during the silence period. This was despite suggestions by the Sinha committee, to “consider the possibility of blocking posting of election advertisements during the period of the last 48 hours…” The social network, the people confirmed, was also the “most vocal and driving things” in meetings between industry body IAMAI and the ECI.

Referring to a March 23, 2019 notification, the ECI spokesperson reiterated that "TV/Radio channels and cable networks/internet website /social media platforms should ensure that the contents of the programmes telecast/broadcast/ displayed by them during the period of 48 hours referred to in Section 126 do not contain any material, including views/appeals by panelists/participants that may be construed as promoting/ prejudicing the prospect of any particular party or candidate(s) or influencing/ affecting the result of the election”. This, among other things also included display of any opinion poll and of standard debates, analysis, visuals and sound-bytes.

It was also party to a public interest litigation in the Bombay High Court to enforce campaign silence for social media companies. “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,” the Facebook memo said. The VCE was a potent instrument that Facebook used to blunt any new binding commitments.

In a section titled “Code of Ethics Election Commission: The Incredibles”, Facebook notes, “This [VCE] 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 attracting bad regulation.” Under the code, it created a high-priority channel for notice and take-down after receiving valid legal orders. That meant the onus of flagging content shifted to the ECI and Facebook merely carried out its instructions.

Sahana Udupa, professor of media anthropology at University of Munich and a Joan Shorenstein Fellow at Harvard University, told The Intersection over phone, “The voluntary code that was drawn (up) during the 2019 general elections was weak and insufficient, not least because of the very manner in which it was created.”

Facebook was alarmed that the ECI was planning to introduce a regulatory framework for platforms requiring them to proactively monitor and 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.” In the end, the VCE merely said that participants will commit to following transparency in paid political advertising and instituted a mechanism to fast-track the ECI’s action requests.

Writing in the memo, a Facebook official said, “We ensured our primary trade body IAMAI was involved to negotiate on behalf of the 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.” Despite repeated requests, IAMAI remained unavailable for comment.

Udupa said by negotiating with the ECI through an entity like the IAMAI, social media companies secured the buffer of an association to agree to a voluntary code. “Such double distancing on the part of the social media companies—first from being direct parties and second from enforceable obligation—showed that the voluntary code arrangement was weak from its very inception.”

In sharp contrast, even though there is no concept of a silence period in the US, Facebook disabled fresh political ads on its platforms for a seven-day period before the 2020 presidential elections. A former Facebook official said that the company says it wants regulation, but in reality “they’re trying to shape regulation to what works best for them”.

The ECI pulled one back on removal of content. Facebook’s original position on content takedowns, multiple sources confirmed, was a maximum duration of 72 hours, in line with the then version of the IT Act of 2000. The Sinha committee wanted it in 24 hours. An ECI official told The Intersection and The Hindustan Times that while there was demand from social media companies to increase the time for take-down of content. The ECI held firm, asking them to remove any flagged material within three hours. Ultimately, it came down to two hours.

Just a code

It worked in Facebook’s favour that the ECI was pressed for time. An amendment to the legislation governing the elections, the Representation of the People Act, the ECI official added, would have taken a while to go through Parliament. A voluntary code therefore was a fair idea. “At that stage, it was considered that an amendment would take time to process, and thus, the voluntary code was considered a better via-media,” the ECI official said.

“Our priority was to have a framework where grievances were expeditiously addressed and one that all social media companies abide by.”

A former EC official who worked on the voluntary code said on condition of anonymity that it was beyond the mandate of the Commission to frame a law. “The Commission doesn’t make the laws. Whatever compliance is required must be anchored in a law and as such the EC had made recommendations to the IT ministry what to include.”

To be sure, the Sinha Committee report recommended the insertion of the term “election matter” to the draft Information Technology [Intermediaries Guidelines (Amendment) Rules, 2018], to “suitably to address the concern of misuse of social media for the purposes of elections, particularly during the prohibitory period.”

In September 2019, the ECI mandated that the VCE would be in use in all future elections, including the ones to elect legislative assemblies. At the time, Haryana and Maharashtra were going to polls.

While the code had served its purpose, a senior IT ministry official told The Intersection and The Hindustan Times that fresh legislation was required as it was no longer about the bigger platforms. “It is applicable to everyone, the smaller ones too. And if there is no legislation, the code should be evolutionary in nature, and reflect changes in prevailing conditions,” he said.

(Deeksha Bhardwaj is a New Delhi-based reporter with The Hindustan Times covering developments in technology policy. She can be reached at @deekbhardwaj on Twitter)