Colombia - CNE: Another Approach to Regulating Election Campaigns on Social Media

The National Electoral Council (CNE) in Colombia launched an investigation into one of the candidates for mayor of Tarqui, Huila, in the October 2019 elections because he used his personal Facebook account in May 2

The National Electoral Council (CNE) in Colombia launched an investigation into one of the candidates for mayor of Tarqui (Huila) in the October 2019 elections, because he used his personal Facebook account in May 2019 to promote his candidacy outside the permitted terms for campaigning in those elections. Recently, the CNE, through a press release, announced that it had decided not to sanction the candidate but did change its doctrine by stating that the communicational impact of social media means that propaganda disseminated through those platforms is indeed regulated. In other words, it warns that it will impose sanctions for such incidents in the future. The press release was published 20 days ago, but the corresponding resolution has not yet been published; however, a draft text has already been leaked showing that the CNE analyzed at least three of the most relevant issues currently being discussed regarding disinformation, electoral discourse, and campaigns. Today, the global public debate on electoral propaganda on social media has focused on regulatory mechanisms to hold internet intermediaries (such as Facebook or Twitter) accountable for the actions of the people who use their platforms. This discussion is part of the broader global concern about how to control “fake news” that undermines democratic debate. The CNE’s approach to the issue is different and refreshing, beginning with the selection of the case: a candidate who uses his Facebook account to run campaign ads outside the timeframes permitted by law, because, since it does not involve a banner—or large-format advertisement in a public space—a radio station, or traditional advertising, the candidate assumes he is permitted to do so. However, this approach falls short; it provides no guidelines on how to distinguish between a candidate’s voice when engaging in campaigning and when simply expressing an opinion—an issue that should be a cause for concern and requires further analysis. The major challenge facing electoral authorities with regard to technology is how to extend the rules and safeguards from the offline world to the online world, and the most common response has been to turn to intermediaries to have them resolve the issue, that is, it is often thought that the solution is to order Facebook—in this case—to moderate that type of content. Therefore, it is positive that the CNE is beginning to extrapolate the Corporation’s criteria related to campaign advertising—subjects, purpose, and timing—to new media. It is also positive that this extension is accompanied by an analysis of the impact of this technology on the electoral process. In line with freedom of expression standards, the CNE did not impose filters but rather analyzed the content after it was published—a crucial distinction, since had it acted before the elections, we would have characterized its action as prior censorship. Based on reports and studies (in this case from the MOE and the Inter-American Institute of Human Rights), the CNE determined that the effect the Internet has on the electoral debate is similar to the impact traditionally exerted by the mass media. The most interesting aspect of the leaked CNE resolution is that it addresses the issue of electoral propaganda by emphasizing the responsibility that falls on one of the key actors in the public electoral debate—and on whom special responsibility has traditionally fallen—namely, the candidate. The CNE argues that, by virtue of their status, candidates are the first to be called upon to promote responsible public debate. This is an interesting perspective amid the chaotic mix that is the discussion of “fake news” during electoral processes. However, the CNE’s analysis and approach to this issue are not without problems. It seems the CNE gets tangled up because it attempts to update the existing regulation—which is extremely precise regarding what can and cannot be done in the months leading up to an election— across very specific media—from billboards to radio stations—using an analogy that is taken to the extreme and thus ends up stretching the concept too far. It is one thing to argue that the impact of online campaigning is similar to that of traditional media, and quite another to suggest that the treatment and measures applicable to traditional media can be directly applied to the internet. There are several differences between the two, but the most important one—which the CNE failed to consider—is that while the internet is a two-way channel—reaching from many to many—traditional media are one-way—from one or a few to many. This is a central difference: the infrastructure, the permits, and the centralization of discourse are very different in each case. To operate a radio station, a television channel, or even display a billboard, permits are required, and the person responsible for giving others a voice must be identified. In contrast, to say something online, all it takes is a social media account, and the impact depends on the reach that person is able to build. Thus, while the impact may be similar, the channel, the form, and the process are different; consequently, the way freedom of expression is realized through each is distinct. These and other specific characteristics of each medium were not addressed in several of the points the CNE covers in its resolution, but three in particular are of concern: 1. The scope of the “entities” criterion will need to be moderated when applied to the digital environment. “Entities,” the CNE states, are political parties, political movements, social movements, significant groups of citizens, candidates for elected office, and the people who support them. Using this criterion, as we have already seen, is positive because it emphasizes the responsibility that falls on key actors in the process regarding the use of communications in an election campaign. However, great care must be taken to ensure that responsibility falls on those who bear it within a campaign and not on supporters. The responsibility of those who lead a campaign cannot be the same as that of ordinary citizens, as this would impose serious limits on their ability to participate in public debate. The CNE must give more thought to and better develop how to apply this definition to a medium as open as the internet—and especially to social media—so that it is clear that the responsibility in question lies with the candidate, the campaign, and the party, not with their supporters. The CNE is mistaken in adopting the Constitutional Court’s 2012 analysis that equates social media with traditional media. It is one thing for the CNE’s analysis to conclude that social media can be comparable in impact to traditional media, given its ability to widely disseminate a message, but to go so far as to equate the two channels, as the Court did at the time—in Ruling C-592 of 2012—is dangerous. The characteristics of these services are different, as evidenced simply by who can use their voice on each platform: anyone can have a social media account or create a website, but not everyone owns a media outlet. In its current wording, plain and simple, the CNE places on the shoulders of any ordinary person who speaks out on political issues the duty to be truthful in their expression—a duty that falls on the media—and imposes the duty to retract statements on anyone who freely expresses an opinion or idea—a duty specific to the media and designed for them. Surely that was not the scope intended by the CNE, which was analyzing the candidate’s responsibility because the candidate—like the media—is indeed obligated to comply with certain rules, in this case, those of the electoral process, even on the Internet. 2. Equating social media and instant messaging services with the media is mistaken. But it is even more mistaken when it asserts that instant messaging services also fall under this category. Although the case did not refer to instant messaging services, the CNE lumps them together with social media. The impact of services like WhatsApp on the public electoral debate is undeniable, but again, it is a mistake to equate a private messaging service with social media, and to conclude that this makes it a media outlet is even more concerning. The way messages and propaganda circulate and impact the electoral process when instant messaging services are used requires special analysis, but this must be done based on the specific characteristics of the service itself and not out of haste. Since the case did not even pertain to this service, it should not have been part of the CNE’s analysis. 3. The CNE does not provide criteria or guidelines to indicate what type of messages will be considered “free propaganda” that “may be reported as an in-house resource subject to the corresponding commercial value.” Given that a politician constantly communicates by conveying political messages aligned with their candidacy or political activities, it also seems excessive to consider everything they communicate as propaganda for their campaign (or future campaign). These guidelines deserve a broader and more democratic discussion that allows for an assessment of their effects. In summary, the resolution takes a positive step: the internet is not a space free from electoral campaign rules, and it is possible to extend the criteria for violations of campaign regulations to this environment. However, if the regulation is excessively precise—as is the Colombian one regarding what can and cannot be done—it will need to be adjusted to better align with the nature and architecture of the internet. In the process of developing these rules, the diverse range of stakeholders must be consulted and invited to participate, particularly those involved in internet governance. In short, let it be clear that an extreme analogy, however well-intentioned, can break the system. By Carolina Botero, director of the Karisma Foundation Photo credit: Morning Brew