Are political parties violating election laws by the illegal use of Facebook 'switcher tool'?

Reports allege that the AIADMK has developed a "Facebook account switcher tool". This switcher tool is allegedly being used to switch between multiple fake accounts, which run into millions, to generate large scale positive or negative responses on social media, either in favour of the party or against their opponents. The authenticity of the leaked e-mail and related Whatsapp messages is yet to be confirmed. If this activity is indeed being conducted by the political party itself, then this will be a grave violation of the election laws of the country.

Similar allegations came up against other political parties prior to the 2014 Lok Sabha Elections. Those, however, referred to the activity of third parties, where there was no means of determining who the third parties were, or if they were real persons at all. The activity of such third parties is unregulated under election laws. The current allegations, on the other hand, refer to the activity of a political party itself. This will come directly under the purview of election laws.

Disclosure of the 'Switcher Tool'

In view of the increasing use of the internet in election campaigns, the Election Commission of India issued Instructions of the Commission with respect to use of Social Media in Election Campaigning (the Social Media Instructions) in 2013. Under the Social Media Instructions, all political candidates are bound to give information about their social media accounts, and expenditure incurred in the use and maintenance of their social media accounts. The use of a 'Facebook switcher account tool' and the expenditure incurred in acquiring it will need to be disclosed to the Election Commission under these heads. For example, the e-mail alleges that this tool was specially designed for the party. If so, the expenditure incurred in the hiring of software programmers and other technical experts for the development of such a tool will have to be disclosed. The use of such a tool without disclosure to the Election Commission will, therefore, violate election laws.

Representational image. Gettyimage

Representational image. Gettyimage

Legality of the 'Switcher Tool' Itself

The switcher tool is similar to the account switcher tool available in websites like Twitter, which allow users to switch between their multiple Twitter accounts, for example, their personal and public Twitter profiles. Facebook, however, does not provide users with an account switcher. Other Facebook account switchers, such as 'Mutli for Facebook' are available on Google Play Store. It is to be noted that the development of such a tool by a political party is not, in itself, a violation of election laws. However, the e-mail goes on to allege that Facebook was 'hacked' to create this tool. It is not clear if the hacking was done with or without the consent of Facebook. If done without Facebook's consent, this is an offence under Section 66 read with Sections 43(i) and (j) of the Information Technology Act, 2000. Unfortunately, under the Information Technology Act, only Facebook will be able to take action against such hacking. Under election laws, the Model Code of Conduct and the Representation of the People Act, 1951, give a list of 'corrupt practices' and offences, the commission of which can lead to the disqualification of a political candidate. The hacking of a website for the purpose of election campaigning is not specified among the offences listed there. Since this is a violation of the law for the purpose of elections, however, it is possible that the Election Commission will have the power to act against it.

Alleged Use of the Switcher Tool to Manage Multiple Accounts

Though the e-mail doesn't specify what accounts are being managed through it, speculations are that it is being used to manage multiple fake accounts. Under the Social Media Instructions, the political candidates have to disclose the complete list of social media accounts being used by them. This will include accounts on Facebook, YouTube, Twitter, Wikipedia and even apps developed and used by the candidates. It is to be noted that the Instructions do not restrict the number of accounts being used by political candidates, which makes it clear that legally, a candidate can have more than one. However, every one of these accounts has to be disclosed to the Election Commission, to enable it to monitor the online activity of the candidates. The use of multiple fake accounts by a party will therefore be a clear violation of the election laws.

Use of Online Social Media Activity to Influence Public Opinion

The purpose of the switcher tool, is allegedly to better manage the use of the accounts to influence public opinion in favour of political parties. There are several laws in place to deal with attempts to influence public opinion during election campaigns. For example, Section 123(4) of the Representation of the People Act, 1951 punishes the publication of false statements by one political candidate about another, in an attempt to affect their election prospects. Any such use by the switcher tool will, therefore, make the political candidate liable for disqualification. Section 171G of the Indian Penal Code, 1860 punishes such a false statement made by any person. The activities of third parties will also be punishable under this law.

The Election Commission itself keeps a close watch on the interactions of political parties with the public. All political advertisements and news are monitored by the Election Commission. Traditionally, the laws relating to political advertisements and paid news refer to those published by news and media houses, for example, in newspapers, news channels, etc. The advent of social media has reduced the need for news and media houses for politicians to reach out to the masses for the spread of political propaganda. The Social Media Instructions, noting that social media websites are also electronic media, has extended the application of these laws to any advertisement or news there as well. It is not clear what the scope of political advertisement will be on social media, for example, will a tweet, or a share, or a like be treated as political advertisement? Despite this, it is clear that all such activities come under the purview of the Social Media Instructions, and any attempt to influence public opinion through these means will also make the candidate liable for disqualification.

The Social Media Instructions are a welcome first step to regulate such activities. The reported use of software by the Election Commission to monitor paid content and hate speech online is another welcome step. The Switcher tool, however, brings to light a newer form of electoral malpractice- the use of cybercrimes like hacking to further political agendas. The Election Commission needs to issue more detailed regulations regulating all political activities, overt and covert, in cyberspace.

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Updated Date: May 18, 2016 16:59:46 IST

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