DATE DOWNLOADED: Tue Oct 12 05:05:45 2021

SOURCE: Content Downloaded from HeinOnline

Citations:

Bluebook 21st ed.

Shruti Shikha & Nandita Mishra, Cyber Trooping Activities on Social Media and Its
Impact on Elections in India, 7 INDIAN J.L. & PUB. POL'y 37 (2020).

ALWD 6th ed.

Shikha, S.; Mishra, N. ., Cyber trooping activities on social media and its impact on
elections in india, 7(1) Indian J.L. & Pub. Pol'y 37 (2020).

APA 7th ed.

Shikha, S., & Mishra, N. (2020). Cyber trooping activities on social media and its
impact on elections in india. Indian Journal of Law & Public Policy, 7(1), 37-52.

Chicago 17th ed.

Shruti Shikha; Nandita Mishra, "Cyber Trooping Activities on Social Media and Its
Impact on Elections in India," Indian Journal of Law & Public Policy 7, no. 1 (Winter
2020): 37-52

McGill Guide 9th ed.

Shruti Shikha & Nandita Mishra, "Cyber Trooping Activities on Social Media and Its
Impact on Elections in India" (2020) 7:1 Indian JL & Pub Pol'y 37.

AGLC 4th ed.

Shruti Shikha and Nandita Mishra, 'Cyber Trooping Activities on Social Media and Its
Impact on Elections in India' (2020) 7(1) Indian Journal of Law & Public Policy 37.

MLA 8th ed.

Shikha, Shruti, and Nandita Mishra. "Cyber Trooping Activities on Social Media and
Its Impact on Elections in India." Indian Journal of Law & Public Policy, vol. 7, no.
1, Winter 2020, p. 37-52. HeinOnline.

OSCOLA 4th ed.

Shruti Shikha and Nandita Mishra, 'Cyber Trooping Activities on Social Media and Its
Impact on Elections in India' (2020) 7 Indian JL & Pub Pol'y 37

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information
 CYBER TROOPING ACTIVITIES ON SOCIAL MEDIA AND ITS IMPACT ON ELECTIONS

IN INDIA

- SHRUTI SHIKHA & NANDITA MISHRA*

Abstract politicalpartiesengaging in these activities on an even

wider scale. And, atpresent we do not have any laws
"Democrag expects openness and openness is
to address such matters and the general lack of
concomitant of a free society and the sunlight is the
awareness and inability of the generalpub/c to fact-
best disinfectant."'
check the information availablehave given a big boost

Our Constitution makers envisaged a free society to these activities. This calls for strict action to be

where people have access to information and are able taken by the government to curb iyber trooping

to freely express their opinion. This is the activities by enactment of laws in this respect.

fundamentalpremiseon which a democrag rests and

This paper endeavours to present a picture of the
ifpeople are largely ignorantand misinformed, then it
idespread involvement of politicalparties in iyber
is merely a farce. Today, advancement in technology
trooping activities to manpulatepubic opinion and
and increase in number of internet users has made
how the same poses severe repercussions to the
disinformation very rampant. Politicalparties have
functioning of our democratic and welfare state and
beenfound to be engaging in cyber trooping activities
suggests measures to be taken to curb the same.
which enables them to spreadmisinformation to large
groups ofpeople within seconds. And the paucity of Keywords: Cyber Trooping Activities,
laws concerning the matter and obsolete police Elections, Social Media, Political Bots,
mechanism make it neary impossible togo behind the Election Commission of India, Cyber Crime.

complexfabric of yber trooping activities to identify

I. INTRODUCTION
the realperpetrators.This callsfor a serious attempt
to be made to address the issue to protect the Free and fair election is the touchstone of a
democraticfibre of our country. successful democracy. It forms the heart of

parliamentary system2 and includes that the

Cyber Trooping is a relativey new development in
voters have the right to choose freely,
India and abroad. Engagement ofpo/ticalpartiesin
representatives of their choice who shall run
India in these activities was first reported in 2014
the state.3 This choice can be said to be free
general election and the 2019 general election saw

* The authors are fifth year and fourth year law students at Chanakya National Law University, Patna respectively.
1 Dinesh Trivedi, M.P. and Others v. Union of India, (1997) 4 SCC 306.
2 Mohinder Singh Gill v. Chief Election Commissioner A.I.R. 1978, S.C 851.
3 Association for Democratic Reforms & Anr. Vs Union of India, A.I.R. 2001 Delhi 126, 2000 (57) DRJ 82.

37
only when the people have access to true and platforms.'Approximately, one-fourth of the

knowledgeable information which enables voters are active on Facebook, one-third

them to make informed choices. However, in actively use WhatsApp and about one-

the wake of rise in number of internet users, twentieth of the voters are active on Twitter.'

there has been widespread dissemination of With such a massive voting population
false information or misinformation to which within its grasp,'these platforms can be easily
more and more people are getting exposed used to influence at least forty per cent of the
each day. voters of the country who have almost no

means to fact check the content available on

Today, social media has emerged as an
such platforms and therefore, fall easy
important tool for propagation and
victims to manipulation by the tailored
dissemination of information and increasing
information and misinformation spread by
number of political parties are engaging in
political parties.'
what is known as social media marketing. 4

Since, there is no law to keep a check on Political parties use techniques and tools like

content posted on these social media messaging, valance10 , trolling", etc. to spread

platforms, it has become a grievous concern mis-information and manipulate public

to our democracy that needs to be addressed opinion," which have been collectively
at the latest. termed as cyber trooping activities. These

activities are carried out either by humans or

A recent study conducted on use of internet
automatic applications or bots or collectively
in India, showed that nearly half of the voters
by both and have seen intensive use from the
in India use internet of which majority are
start of the last decade. The Russian
active on social media
presidential elections of 201213, Indian

4 Hunt Allcott and Matthew Gentzkow, Social Media
and Fake News in the 2016 Election, 31 Journal of
Economic Perspectives, 211, 236 (2017).
5 Arushi Chopra, Number Of Internet Users In India Could
Cross 450 Million By June: Report, LiveMint (Mar. 2,
2017),
https://www.livemint.com/Industry/QWzIOYEsfQ
JknXhC3HiuVI/Number-of-Internet-users-in-India-
could-cross-450-million-by.html.
6 Neena Talwar Kanungo, India's Digital Poll Battle:
Political Parties and Social Media in the 16th Lok Sabha
Elections, 3 SAGE Journals, 212, 226 (2015).
7 W. Glynn Mangold & David J. Faulds, Social Media:
The New Hybrid Element Of The Promotion Mix, 52,
Business Horizons, 357, 362 (2009).
8 Laura Kalman, Law, Politics, And The
New Deal(s),
108 Yale L.J., 2165, 2189 (1999).
9 Philip E. Agre & Marc Rotenberg, Technology and
Privacy: The New Landscape, 11 Harvard Journal of Law
& Technology, 871, 876-879 (1998).
10 Yosra Akrimi & Romdhane Khemakhem, What
Drive Consumers to Spread the Word in Social Media?, 212
Journal of Marketing Research & Case Studies, 1, 1-14
(2012).
1 Samantha Bradshaw & Philip N. Howard, Troops,
Trolls and Troublemakers: A Global Inventory of Organized
SocialMedia Manipulation, (Computational Propaganda
Research Project, University of Oxford, Working
Paper No. 2017.12).
12 Meeyoung Cha, H. Haddadi, F. Benevenuto & K.
Gummadi, Measuring User Influence In Twitter: The Million
FollowerFallay , ICWSM (2010).
13 Guide to Russia's PresidentialElection on 4 March 2012,
Moscow Times, (Dec. 15, 2011),
https://fas.org/sgp/crs/row/R42407.pdf.

38
general elections of 2014' 4and 2019,15 US schemes that could aid and empower the

presidential elections of 2016,16 inter alia, Election Commission of India in conducting

involved wide scale use of social media by elections in free and fair manner.

political parties to assess and manipulate

II. CYBER TROOPING ACTIVITIES
public opinion and different NGOs and

media houses came to the fore to report this Before proceeding to the question of how

unprecedented development in election social media influences elections in India, it is

campaigning.17 pertinent to understand the concept of cyber

trooping Activities that political parties

This paper analyses the increasing influence
engage in to manipulate public opinion.
of social media on elections in India while

comparing the same with the global scenario. Cyber Trooping Activities1 8 comprise of the

An attempt has been made to assess the use of different kinds of strategies, tools and

involvement of political parties in India in techniques over social media platforms to

cyber trooping activities, as recorded in assess and manipulate public opinion." Some

different elections and to present a picture of of these techniques and tools that have been

severe repercussions that our democracy will prominently used for election campaigning in

have to suffer if this practice continues to recent times have been discussed below:

grow uninhibited. An analysis of the existing

Messaging and Valance: Valance is a term
legal provisions that could prevent such
that is used to define the attractiveness or
activities and the existing loopholes in them
averseness of a message, event or thing. The
has been made.
messaging and valance strategy involves

Further, the paper also suggests different online commentators, who are either hired by

measures that the government should take to political parties or are independent but

curb these unfair practices, which involves a strongly inclined towards any political party

comprehensive scheme of amending the or have connections with any party. 20 These

existing legislations, enacting new legislations commentators engage the social media users

as well as formulation of various policies and in a discourse or conversation regarding any

14 supra Note 6 at 220. And The Use Of Twitter. 17 The Journal of Legislative
15 2019 Lok Sabha Elections, Biggest Ever Test Of Social Studies, 86, 97 (2014).
Media Role In Polls, The Hindu (Dec. 20, 2018), 18 Agre & Rotenberg, Supra note 9 at 873.
https://www.thehindu.com/news/national/2019- 19 Supra note 15.
lok-sabha-elections-biggest-ever-test-of-social-media- 20 Neill Fitzpatrick, Media Manipulation 2.0: The Impact
role-in-polls/article25790529.ece. of Social Media on News, Competition, and Accuracy, 4
16 supra Note 4 at 232. Athens Journal of Mass Media and Communications,
17 Nigel Jackson & Darren Lilleker, Microblogging, 45, 51 (2018).
Constituency Service And Impression Management: UK MPs

39
political issue and observe their reactions and Political Parties hire people to create and

directing the conversation in favour of the disseminate junk news and campaign crafted

political party they are working for. The information by employing these strategies.

commentators usually follow either a pro- These groups of people who engage in such

active approach, where they start the activities are known as 'Cyber Troops'. These

conversation applauding the steps taken by troops carry out their activities through social

the political party they support, and media accounts which are of three types:

criticizing the opposition parties or a neutral automatic, human and hybrid or cyborg

approach where the conversation is started accounts.

with regard to a particular issue and gradually,

Automatic accounts are also popularly
they direct the conversation in favour of the
known as Political Bots.24 These are
2
political party they support.
'

computer generated algorithms that are

Trolling: This activity involves the designed to automatically create, like and

dissemination of hateful memes and other share content favourable to the party they are

content on the internet by one party to troll controlled and managed by. These are by far

their opposition parties. 22 Usually, this is the the most preferred and popular means of

case in majoritarian countries where social media manipulation by political parties.

particular communities which form the The activities of these bots have been seen to

minorities are targeted to silence their voice. drown real information in the face of

There have been instances of many state- disinformation spread by them. And, in some

sponsored trolling campaigns targeting cases, like that of Russia, 25 China,2 6

political dissidents, members of the

opposition or journalists. 2 3

21 Bruce Schneier, WUhy Anonymous Data Sometimes Isn't,
Wired, (Dec. 12, 2017),
https://www.wired.com/2007/12/why-anonymous-
data-sometimes-isnt/.
22 Kate Crawford and Jason Schultz, Big DataAnd Due
Process: TowardsA Framework To Redress Predictive Privacy
Harms, 55 Boston College Law Review, 93, 117 (2014).
23 Natasha Singer & Charles Duhigg, Tracking Voters'
Clicks Online to Tg to Sway Them, N. Y. Times, (Oct. 27,
2012),
https://www.nytimes.com/2012/10/28/us/politics/
tracking-clicks-online-to-try-to-sway-voters.html.
24 Robert Faris, Hal Roberts, Bruce Etling, Nikki
Bourassa, Ethan Zuckerman &Yochai Benkler, Media
Structure & Partisanship, Partisanship, Propaganda,
&
Research Paper, (Jun. 22, 2020, 7:18 PM),
https://dash.harvard.edu/bitstream/handle/1/3375
9251/2017-08_electionReport_0.pdf.
25 Todd C. Helmus, Elizabeth Bodine-Baron, Andrew
Radin, Madeline Magnuson, Joshua Mendelsohn,
William Marcellino, Andriy Bega & Zev Winkelman,
Russian Propagandaon Social Media, Russian Social Media
Influence:Understanding Russian Propaganda in Eastern
Europe, (May 12, 2020, 4:31 PM),
https://www.rand.org/content/dam/rand/pubs/res
earchreports/RR2200/RR2237/RANDRR2237.p
df.
26 Gillian Bolsover & Philip Howard, Chinese
Computational Propaganda: Automation, Algorithms And
The Manipulation Of Information About Chinese Politics On

Disinformation Online Media & the 2016 U.S. Presidential Twitter And Weibo, 18 (2), Information,
Election, Berkman Klein Center for Internet & Society Communication & Society, 1, 93 (2018).

40
Ecuador, 27 Sewden,2 8 and Armenia," these political parties for all to see. But, political

bots have been successful in taking down parties have also been found to engage in,

original and real pages of news websites by what is called, 'Micro-targeting of

reporting and blocking them." Advertisements'. 32 In this process, the troops

use the demographic data collected through

Human accounts are those which are
social networking sites to target and send
managed by a coordinated team of people
propaganda specific content of their party to
employed by political parties. These people
people who are prone to believe and
create many fake accounts for the purposes
advertise the same. 33 This data includes the
of propagation of disinformation and
record of activities of people on social media
promotion of the concerned political party.
which is mined to generate relevant
Cyborg Accounts are hybrid accounts information as to their preferences and habits

consisting of elements of both automated to specifically target people who are likely to

account and human accounts so as to make fall victims to such manipulation.

the people believe in the genuineness of the

III. MAGNITUDE OF PROBLEM:
accounts, which can otherwise be discovered
CURRENT SITUATION IN INDIA
if the account is fully automated without

compromising with the automatic mass 2014 Lok Sabha election can rightly be said

disinformation dissemination feature of to be the first election in Indian history to

automated accounts. 31 have witnessed wide scale social media

campaigning. Memes, hate speeches, edited

Mode of Conduct of Cyber Troops
fake videos, photographs, etc. were
In general, cyber troops post content on rampantly in circulation on social media

social media, trolling or demeaning rival platforms that had a massive influence on

27 Daniel Riofrio, Qasim Raza, Anacaren Ruiz, Adnan
Bashir, Erin Sosebee & Jed Crandall, Bot Analysis,
Tracking Elections: Our Expeience During The Presidential
Elections In Ecuador (May 27, 2020, 5:04 PM),
https://arxiv.org/pdf/ 1807.06147.pdf.
28 Johan Fernquist, Lisa Kaati, Nazar Akrami, Katie
Cohen, Ralph Schroeder, Bots and the Swedish Election:
A Study ofAutomated Accounts on Twitter, (May 29, 2020,
8:52 PM)
https://www.foi.se/download/18.6b6fc4521690ffa2
022169/ 1550764502501/Political-bots-
Swedish_election_FOI-S--5937--SE.pdf.
29 Supra Note 22 at 102.
30Donna J. Haraway, Sdence,Technology, And Sodalist
-
2020, 9:20 PM),
https://warwick.ac.uk/fac/arts/english/currentstude
nts /undergraduate/modules / fictionnownarrativeme
diaandtheoryinthe2lstcentury/manifestly_haraway_--
_a_cyborgmanifesto_science_technologyand_socia
list-feminism_in_the_....pdf.
31 Sreeram Gopalkrishnan, The Trump Campaign
Computational Propaganda Challenge for the Indian
ParliamentayElections 2019, 9 Media Watch Journal, 79,
79-88, (2018).
32 Id.
33 M. Kosinskia, D. Stillwella & T. Graepelb, Private
TraitsAnd Attributes Are PredictableFrom DigitalRecords

Feminism In The Late Twentieth Century, A Cyborg Of Human Behavior, 110 The Psychometrics Centre,
Manifesto, University of Minnesota Press, (May 19, University of Cambridge, PNAS, 846, 862, (2013).

41
public opinion. Then, only 20 crores people supporting their political campaign. The
had access to internet but, in 2019 almost 56 recent Twitter purge of fake accounts, where

crores people have access to social media, Prime Minister Mr. Narendra Modi lost

which is nearly half of the entire population 300,000 followers and Congress chief Rahul

of India, making social media an even bigger Gandhi lost 17,000, speaks of how

game changer in the 2019 general election. 34 widespread bot activity is among India's

political candidates. 38 This is because

Political parties have been reported to hire
automated accounts enable the political
Public Relations firms35 to spread their
parties to reach more people and as
propaganda online. Small-scale
Bradshaw has famously said, "If you can
entrepreneurs who are paid in small amounts
generate trends, you can generate truths".39
are also hired for this work and as their

operation grows, they are paid more Reports claim BJP to be the pioneer of social

remuneration.36 These form cyber troops as media campaigning and the massive landslide

has been described earlier and are tasked with victory of BJP in both 2014 and 2019 Lok

the responsibility of making fake social media Sabha Elections holds testimony to the fact.40

accounts and managing them. These BJP has been repeatedly accused of engaging

accounts could be of the nature of human, in large scale internet trolling and fake photo

automatic or cyborg accounts but automatic forwards. However, recent studies show that

accounts using robotic system known as, almost all of the political parties employ

'political bots' are more common. A study cyber trooping methods to twist public

conducted by Twitter 37 showed that political opinion in their favour. Whether it be state

parties use bots to boost their follower or general elections, there is no dearth of

counts, or to retweet, like or share content rampant misinformation being spread by

34 Internet Users In India To Reach 627 Million In 2019: https://www.businesstoday.in/opinion/columns/dig

Report, The Economic Times, (Mar. 06, 2020), ital-evolution-in-india/story/259227.html.
//economictimes.indiatimes.com/articleshow/68288 38 Modi loses 284,746 followers, Rahul 17,000 as Twitter
868.cms?utm_source=contentofinterest&utm_mediu Removes Accounts, Business Standard, (July 13, 2018),
m=text&utm_campaign=cppst. https://www.business-standard.com/article/current-
35 Manoj Vishwanathan & Arun M, Candidates Turn to affairs/modi-loses-284-746-followers-rahul-17-000-
PR Agenies to Run the Show, The Indian Express, (Mar. as-twitter-removes-accounts -118071300691_1.html
24, 2019), 39 Ananya Bhattacharya, Oxford Researchers Warn India
http://www.newindianexpress.com/states/kerala/20 Of A Fake-news EpidemicAs Elections Approach,
19/mar/24/candidates-turn-to-pr-agencies-to-run- Quartz India, (July 25, 2018),
the-show-1954943.html. https://qz.com/india/1335161/indias-fake-news-
36 Valerian Rodrigues, Making Democracy Meaningful, crisis-to-worsen-ahead-of-election-oxford-study/.
The Hindu, (April 05, 2020), 40 BJP Tops Political Advertisement Spend on Facebook,
https://www.thehindu.com/opinion/lead/making- Google in Feb-May, The Hindu, (May 19, 2019),
democracy-meaningful/article26737899.ece. https://www.thehindu.com/elections/lok-sabha-
37Ranjan Guha, Digital Evolution in India, Business 2019/political-advertisements-spend-on-facebook-
Today (Aug. 29, 2017), google-tops-53-crore/article27177595.ece.

42
different political actors which can easily be
found on these social media platforms. These
platforms have become the centre stage of
political debates peddled by all kinds of
political and ideological affiliations. The
worst part is that there is no one who bothers
checking the authenticity of information
available on such sites, which makes it easier,
economical and convenient for the political
parties to engage in cyber trooping activities
and political parties nowadays have been
found to be spending at least 7-8% of their
budget on these activities."
All this has brought the social media giants
under severe criticism, mindful of which
some of these companies have taken steps to
curb this rising menace.42 For instance,
WhatsApp had limited the number of
forward messages to five chats in an effort to
prevent mass forwards from instigating
rumors and violence.43 It had also set up
research grants prior to 2019 general election
41 Archana Chaudhary and Jeanette Rodrigues, Why
India'sElection IsAmong The World's Most Expensive, The
Economic Times, (Mar. 12, 2019),
//economictimes.indiatimes.com/articleshow/68367
262. cms ?utm_source=contentofinterest&utm_mediu
m=text&utm_campaign=cppst.
42 S. Y. Quraishi, What It Takes to Run an Election for
India, N. Y. Times, (Apr. 25, 2019),
https://www.nytimes.com/2019/04/25/opinion/in
dia-elections.html.
4 Whatsapp Limits forwards'To 5 Chats ForUsers Globally
To Combat Fake News, The Hindu, (Jan. 21, 2019 ),
https://www.thehindu.com/business/Industry/what
sapp-limits-forwards-to-5-chats-for-users-globally-to-
combat-fake-news/article26052215.ece.
44 Annie Gowen & Elizabeth Dwoskin, Indians Are
Wild About Whatsapp. But Some Wory It's Hurting
Democracy, The Washington Post, (May 14, 2018),
https://www.washingtonpost.com/world/asiapacifi
c/why-whatsapp-may-present-a-greater-challenge-to-
43
to gain possible insights into ways to curb
such activities.44 Similarly, Facebook also set
up monitoring bodies to keep a check on
such activities. 45
IV. REGULATION OF CYBER
TROOPING ACTIVITIES
Cyber Trooping, as such has not been
recognized as a separate offence under any
law in India. However, different provisions
of the IT Act,46 IT Rules, 47 IPC 4 and
Representation of People's Act49 penalize
activities relating to cyber trooping, which
include:
Fake Accounts on Social Media Platforms:
As per Section 66D 51 of the IT Act, no
person shall create or use fake accounts with
mala fide intent on social media platforms.
Any person acting in contravention of this
provision shall be liable to be punished under
democracy-than-facebook/2018/05/14/11124fea-
5630-11e8-a6d4-
ca1d035642ce_story.html?noredirect=on&utm_term
=.395919bd35e4.
45 Snigdha Poonam & Samarth Bansal, Misinformation
Is Endangering India's Election, The Atlantic, (Apr. 1,
2019),
https://www.theatlantic.com/international/archive/
2019/04/india-misinformation-election-fake-
news/586123/.
46 The Information Technology Act, 2000, No.21,
Acts of Parliament, 2000 (India)
47 The Information Technology (Reasonable Security
Practices and Procedures and Sensitive Personal Data
or Information) Rules, (2000).
48 The Indian Penal Code, 1860, No.45, Acts of
Parliament, 1860 (India).
49 Representation of People's Act, 1951, No.43, Acts
of Parliament, 1951 (India).
50 Supra Note 46
this provision as well as for the offence of
cheating under IPC. 51
Disclosure of Sensitive Personal
Information: Section 43 of IT Act5 2imposes
penalty on disclosure of sensitive personal
information 5 of clients by body corporate.
As per the provision, sensitive personal
information consists of information relating
to; "password,financial information such as bank
account or credit card or debit card or otherpayment
instrument details,physical,physiologicaland mental
health condition, sexual orientation, medical records
and history, Biometric information, any detail
relating to the above clauses as provided to body
corporate for providing service; and any of the
information received under above clauses by body
corporatefor processing, stored or processed under
545556
lawful contract or otherwise."
The Information Technology (Reasonable
Security Practices and Procedures
Sensitive Personal Data or Information)
Rules 201157 contains rules relating
51 The Indian Penal Code,1860, § 415, No.45, Acts of
Parliament, 1860 (India).
52 The Information Technology Act, 2000, § 43,
No.21, Acts of Parliament, 2000 (India)
53 H. Lauw, J. C. Shafer, R. Agrawal, and A. Ntoulas.
Homophily In The DigitalWorld:A IivejournalCase Study.
Internet Computing, IEEE Internet Computing, Mar.-
Apr. 2010, at 15 -23.
54 S. Kumar, N. Agarwal, M. Lim, and H. Liu. Mapping
Sodo-cultural Dynamics In Indonesian Blogosphere at
Proceedings Of The Third International Conference
On Computational Cultural Dynamics, (Dec. 07-09,
2009),
https://www.aaai.org/ocs/index.php/ICCCD/ICC
CD09/paper/viewFile/1019/3317/.
55J. Ritterman, M. Osborne, and E. Klein. Using
Prediction Markets And Twitter To Predict Swine Flu
Pandemic at Proceedings of the 1st International
protection of data. As per these Rules,
personal information is, "any information that
relates to a naturalperson, which either directy or
indirecty, in combination mith other information
available or likey to be available mith a body
corporate, is capable of identifying such person".5 8
This definition has a wider ambit than that of
sensitive personal information and seeks to
protect all other relevant information relating
to sensitive personal information that could
help identify any person. Rule 4 of the IT
Rules, 201151 mandates all the Body
Corporates to publish on its website,
information relating to its privacy policies,
type of personal information collected,
purpose and usage of such information, the
circumstances in which such information
shall be disclosed to third parties and
reasonable security practices and procedures
adopted by the body corporate for handling
and
to
Workshop on Mining Social Media, (July 30, 2009),
https://pdfs. semanticscholar.org/6e8f/50acc402343
1a76e518f4f37ff02e89c7714.pdf
56
L. Tang, X. Wang, and H. Liu. UncoveringGroups Via
Heterogeneous Interaction Analysis at Ninth IEEE
International Conference on Data Mining, (Dec. 06-
09, 2009),
http://www.public.asu.edu/-huanliu/papers/icdm0
9t.pdf
57 The Information Technology (Reasonable Security
Practices and Procedures and Sensitive Personal Data
or Information) Rules, (2000).
58 The Information Technology (Reasonable Security
Practices and Procedures and Sensitive Personal Data
or Information) Rules, Section 2(1) (i), (2000).
59 The Information Technology (Reasonable Security
Practices and Procedures and Sensitive Personal Data
or Information) Rules, Section 2(1) (i), (2000).
44
of such information.6 0 Further, Rule 761
provides that any such information if being
transferred has to be with the consent of the
person providing the information.62
Disclosure of Expenditure incurred by
political parties in elections: Section 7763 of
the Representation of People's Act makes it
mandatory for candidates to report the
expenditure incurred by them in connection
with election beginning from the date on
which he has been nominated to the date on
which the results are declared."
V. ROLE OF ECI
ECI is vested with the power to superintend,
direct and control the preparation of electoral
rolls and conduct of all elections to both
houses of the parliament, legislatures of the
states and election of the President and Vice-
President of India. 65 Article 324 of the
Constitution of India reposes ECI with the
authority to take all steps necessary for the
smooth conduct of free and fair elections. It
has the power to issue directions as per its
discretion to deal with contingencies that
60 EY, Building A Better Working World, PersonalData
Protection Bill-201 8,
https://www.ey.com/Publication/vwLUAssets/ey-
personal-data-protection-bill-2018/%24File/ey-
personal-data-protection-bill-2018.pdf ( last visited
May 23, 2019).
61 The Information Technology (Reasonable Security
Practices and Procedures and Sensitive Personal Data
or Information) Rules, Section 2(1) (i), (2000).
62
Jordi Soria-Comas and Josep Domingo-Ferrer, Big
Data Privacy: Challenges to Privacy Principles and Models, 1
J. Data Sci. Eng., 21, 24 (2016).
63 Representation of People's Act, 1951, § 77, No. 43,
Acts of Parliament, 1951 (India)
45
might arise from time to time which the
legislature might have failed to address in any
enactment or rules.66 This autonomy vested
with the Commission is necessary in view of
the democratic structure of our government
and has been held to be the basic structure of
the Constitution by the Apex Court in
Association for democratic Reforms &Anr. Vs
Union of India.67
The Commission also has the power to frame
rules for the regular conduct of elections 68
and issue guidelines known as Model Code of
Conduct prior to every election detailing how
candidates are to conduct themselves during
elections. Some of the important guidelines
issued by the ECI prior to 2019 general
election also focused on regulation of
election campaigning on social media.69
These directives included 48 hours "silence
period", i.e., no appearance by any of the
candidates on any form of media outlets
before the particular constituency goes for
polls. All the major social media platforms:
Facebook, Twitter, Google, WhatsApp and
SnapChat were to publish only pre-certified
64 Representation of People's Act, 1951, § 77, Acts of
Parliament, 1951 (India)
65 INDIA CONST. art. 324.
66 Association for Democratic Reforms & Anr. Vs
Union of India, A.I.R. 2001 Delhi 126, 2000 (57) DRJ
82.
67 Id.
68 Representation of People's Act, 1951, § 169, Acts of
Parliament, 1951 (India).
69 Model Code & PoliticalAd Rules Will Apply To Social
Media Too, The Economic Times, (Mar. 11, 2019),
//economictimes.indiatimes.com/articleshow/68350
634.cms?utm_source=contentofinterest&utm_mediu
m=text&utm_campaign=cppst.
political advertisements and to report the the primary cause behind it which is

expenses incurred on such advertisements to campaigning by political parties using

the EC. The electronic and radio indirect means. Parties usually hire other

advertisements during model code period persons, who might be individuals or

were to be vetted by district and state-level corporations for such activities that makes it

media certification and monitoring difficult to trace and prove that a certain

committees. These committees were also political party was behind it. We need a
required to have social media expert on stricter legal regime which is at pace with

board to ensure no campaign material on technological advancement of the time, to

such platforms goes unscrutinised. Further, put a leash on such activities.

the candidates were to submit their social

The biggest impediment to preventing the
media account details and all expenditure
growth of such activities is that the law does
incurred on the same including payments
not recognize these activities as a separate
made to internet companies and websites for
offence. What the law recognizes is only a
carrying advertisements and campaign
miniscule version of an entire set of activities
related operational expenditure on making
that is in operation. Secondly, Indian law
creative content, salaries and wages paid to
does not prohibit body corporate from
the workers employed to maintain their social
sharing data produced by data mining.
media account had to be accounted for with
Through the help of data mining, it is
the EC. 70
possible to construct relevant information as

VI. LACUNAE AND LOOPHOLES IN to the preferences of people by processing

EXISTING LAWS the data collected of activities of people on

social media platforms. 71 However, there is

Though, there are several provisions
no law as such to protect this data and if any
penalizing activities related to cyber trooping,
case were to happen in India along the lines
however, these are inefficient and insufficient
of Cambridge Analytica Case, 72 no action
as they fail to address the issue in its entirety
could be taken against such body corporate. 73
and most importantly, these fail to recognize
And, political parties in India have been

70 Model Code & Political Ad Rules Will Appy To Social 72 Andrew Keane Woods, Against DataExceptionalism,
Media Too, The Economic Times, (Mar. 11, 2019), 68 Stan. L. Rev. 729, 737 (2016).
//economictimes.indiatimes.com/articleshow/68350 73 Sunil Abraham, If An Indian Party Acted Like

634.cms?utm_source=contentofinterest&utm_mediu CambridgeAnaytca, It Will Not Be Guiy Under Current

m=text&utm_campaign=cppst Laws, ( April 02 2020, 01:30 AM),
71Ryan Moshell, And Then There Was One: The Outlook https://www.newslaundry.com/2018/03/24/facebo
ForA Self regulatoy United States Amidst A Global Trend ok-data-breach-cambridge-analytica-privacy-law-
Towards Comprehensive Data Protection Framework, 37 sunil-abraham on 02.04.20.
Texas Tech Law Review 357, 368 (2005).

46
reported to taking information from (DPA) is also to be set up under the Bill to

Cambridge Analytica and also entering into supervise and regulate data fiduciaries. 77

deals with its Indian subsidiaries to target

However, this bill is yet to be enacted. Also,
people who are more likely to be manipulated
this Bill is not free from loopholes. The
by the propaganda of the concerned party. 74
problem with the above regulations is that it

Though, Indian law provides protection for only decides liability of body corporate in

personal information but its definition is case of misuse of data which are directly

vague and does not include data collected of collected through the user. Large volumes of

activities of people on these sites. This issue data is collected from social media users from

has been dealt comprehensively in Data their various activities on social media which
Protection Bill, 2018.75 The Bill intends to includes both personal as well as non-

regulate the processing of personal data of personal information, which are then mined
individuals (data principals) by government to produce relevant information.78 This

and private entities (data fiduciaries) transaction of data at various stages and

incorporated in India and abroad. Consent of stockpiling through various direct and
individuals is required for any sort of indirect sources leaves no room for the

processing of such data, however, exceptions applicability of traditional privacy principles.

have been made with respect to processing in And further, to show the liability for

the interest of national security, for legal subjective harm which is identified as a

proceedings, medical emergencies or for situation where there has not been any

journalistic purpose.7 6 The Bill also requires a tangible loss to the individual but the same is

copy of personal data to be stored within the anticipated as a consequence of collection

territory of India and certain critical personal and generation of personal information as

data to be stored solely within the country. A meta-data, becomes the real question.79

national-level Data Protection Authority

In the White Paper on Data Protection

Framework for India, data-gathering

74 Ualan Campbell-Smith and Samantha Bradshaw, 78Christopher Kuner, ExtraterritorialiyandRegulation of

GlobalCyber Troops County Profile: India, 1, 2 - 9, (2019)
https://comprop.oii.ox.ac.uk/wp-
content/uploads/sites/93/2019/05/ India-
Profile.pdf
75 Draft Personal Protection Bill, 2018, (May 22, 2020,
10:04 PM), https://www.prsindia.org/billtrack/draft-
personal-data-protection-bill-2018.
76 The Information Technology (Reasonable Security
Practices and Procedures and Sensitive Personal Data
or Information) Rules, (2000).
77 supra Note 75.
InternationalData Transfers in EU Data Protection Law,
University of Cambridge Faculty of Law Research
Paper No. 49/2015 (30 August 2015).
?9 White Paper Of The Committee Of Experts On A Data
Protection Framework For India, B R Shrikrishna
Committee, Ministry of Electronics and Information
Technology, (June 3, 2020),
https://meity.gov.in/writereaddata/files/whitepape
r_on_dataprotection_in india_18122017_final_v2.1
.pdf

47
processes have been described as being VII. PROVISIONS REGULATING THE

usually opaque, embroiled in complex USE OF SOCIAL MEDIA

privacy forms that are unintelligible. 80 In PLATFORMS IN DIFFERENT

order to protect encroachment upon the COUNTRIES WITH REGARD TO

private sphere of individuals, it becomes ELECTIONS

largely important to define the term personal

Social Media marketing has taken election
data taking into account personal and non-
campaigning by storm, everywhere. Data-
personal sets of information. The apex court
driven campaigns backed by surveillance
in K S Puttuswamy v. Union of India8

'
technologies by Internet Giants such as
emphasised upon the fact that "not only the
Facebook, Google and Twitter, make use of
matters of intimate concerns, having looming shades
loopholes in the existing legal framework, to
of reasonableexpectation ofprivagy should be brought
escape liability as intermediaries, for
about within this sphere". Data protection
influencing elections. The recent cases of UK
regimes should be intended at protecting the
Brexit Referendum and Presidential elections
identity of the individuals, in its entirety. The
in the USA in 2016 are stark examples.8 4
facts, details and opinions bearing a relation
However, different countries have tried to
to the identity of the individual or
enact legislations and policies to curb this
constructive in mapping the behavioural
practice.
profile of the same, should be brought about

within the ambit of personal data and Intergovernmental organizations in Europe

information. 82 All sorts of information like the Organisation for Security and

pertaining to an individual, including the Cooperation in Europe (OSCE), the

opinions and assessments, which might lead European Union, and the Council of Europe

to the person being identified or reasonably have been charged with the responsibility of

identifiable shall be included within personal ensuring level-playing field for candidates.

data, irrespective of the same being direct or Candidates are required to abide by the

indirect. 83

80 Id. 83White Paper Of The Committee Of Experts On A Data

81 Justice K.S.Puttaswamy (Retd.) v. Union of India,
AIR 2017 SC 4161.
82 White Paper Of The Committee Of Experts On A Data
Protection Framework For India, B R Shrikrishna
Committee, Ministry of Electronics and Information
Technology, (June 3,
https://meity.gov.in/writereaddata/files/whitepape
r_on_dataprotection_inindia_18122017_final_v2.1
.pdf.
Protection Framework For India, B R Shrikrishna
Committee, Ministry of Electronics and Information
Technology, (June 3, 2020),
https://meity.gov.in/writereaddata/files/whitepape
r_on_dataprotectioninindia_18122017_final_v2.1
2020), .pdf.
84 Dan Jerker B. Svantesson, Extrateritoriality in the
context of Data Privacy Regulation, 7 Masaryk University,
Journal of Law and Technology 87, 138 (2012).

48
Venice Commission 85 Rules regarding
election campaigning expenditure which
provides that; "Reasonable limitations on
campaign expenditures might be justified where this
is necessay to ensure that thefree choice of voters is
not undermined or the democraticprocess distortedby
the disproportionate expenditure on behal of any
candidate or political party. '" But, these
regulations do not cover the expenditure
incurred by candidates on social media
election campaigning which is a pressing
concern as the election campaigning is swiftly
moving online and large sums of money are
spent on making databases of targeted voters
as per demographic reports, social media
advertising, creation and propagation of
unsolicited election campaign material. 87 88
UK has an advertising code which prohibits
political advertising from being broadcasted
on TV, to avoid giving an advantage to better
financed parties. However, non-broadcast
media are not covered by this Code and
therefore not subject to regulation by the
85 Council of Europe, Venice Commission, Elections
And Referendums, Political Parties,
https://www.venice.coe.int/WebForms/pages/?p -0
1_Elections_and_Referendums (last visited June 2,
2020).
86 European Commission For Democracy Through
Law (Venice Commission), Opinion On The Need ForA
Code Of Good PracticeIn The Field Of Funding Of Electoral
Campaigns,
http://www.eods.eu/library/VC.Opinion%/`20on%/o2
0Code%20o f%20Good%20Practice%20on%20Cam
paign%20Finance.pdf (last visited June 7, 2020).
87 Eur. Consult. Ass., Study On The Use Of Internet In
Electoral Campaigns, Internet And Electoral Campaigns,
Council of Europe Study, Doc. No. DGI (2017)11.
49
Advertising Standards Authority, leaving it
essentially unregulated. 89
Also, the issue of data being procured from
social media companies has yet to receive
adequate attention.The Fair Information
Practices Principles (FIPPS) "considered to
be the benchmark of modern data-handling
practices; regulates and lays down norms for
data-handling, management, and storage of
the same to maintain privacy and
fairness 91but the same again lays down rules
only for data generated through single static
systems, i.e., data received directly from
users. The dispute is regarding what could be
included within the meaning of personal
information and sensitive personal
information. Personal information has been
defined in varying ways in different countries
but the aspects covered under the same
remain identical more or less and fail to cover
the data that are not directly collected from
users, data relating to behavior, activities of
users that can help identify them. The EU
GDPR is best suited in this regard as it
88 Electoral Commission. 2016. UKParliamentary
GeneralElection 2015: Campaign Spending Report at 55-
56 (Feb., 2016),
http://www.electoralcommission.org.uk/_data/ass
ets/pdf file/0006/197907/UKPGE-Spending-
Report-2015.pdf.
89 Mark Sweney & John Plunkett, Ad Watchdog Powerless
To Act On ControversialBrexit Campaigns, The Guardian,
(June 28, 2016),
https://www.theguardian.com/media/2016/jun/28/
ad-watchdog-powerless-to-act-on-controversial-
brexit-campaigns.
90 Paul M. Schwartz, Privacy and Democracy in the Cyber
Space, 52 Vanderbilt Law Review 1609, 1617 (1999).
91 Ryan M. Calo, The Boundaries of Privacy Harm, 86
Indiana Law Journal 1131, 1142-43 (2011).
includes both types of information which organizations to notify the authorities and

form the identity of an individual as well as their customers in case of 'eligible data

the information which might be non- breach'. In New Zealand the country's

personal but could make him identifiable. Privacy Act98 controls how 'agencies' collect,

"The EU's General Data Protection Regime use, disclose, store and give access to

(or GDPR) mandates businesses to be more 'personal information.'

accountable and responsible towards the

VIII. CONCLUSION AND
citizens whose data they collect " and
SUGGESTIONS
imposes stringent compliances on them. In

cases of non- compliances, all businesses India is a welfare state and Part 1V of the

whether based in EU or outside, handling Constitution provides principles as to the

data of EU citizens shall be charged with functioning of the government. Though

fines up to 20 million euros or 4% of these principles are not enforceable in any

company's annual turnover.94The legislation court of law, the government is however held

further requires businesses to clearly inform accountable for its actions by way of

all their customers about the entire process elections where people express their

of data collection and its purpose. 95 mandate. This is why free and fair election

gains even more prominence as this ensures

Steps have been taken by African countries
a successful democracy as well as a proper
as well to provide for the protection of
functioning welfare state. But, where people
personal information of people to ensure that
do not have access to true and knowledgeable
none of the political parties gain an unfair
information, the very concept of fairness
advantage over the other using indirect
fails. The increased incidence of cyber
underhand means that undermines the
trooping activities has made fairness a mere
democratic process. 9697
illusion. Such activities enable political parties

New Zealand and Australia also have laws for to control information and by controlling

data protection. The Australian government

has recently made it mandatory for

92 Article 29 Data Protection Working Party, Opinion
4/2007 on the Concept of Personal Data, European
Commission, Eur. Parl. Deb. 01248/07/EN WP 136.
9 Regulation (EU) 2016/679 Of The European
Parliament And Of The Council of Apr 27, 2016, On
The Protection Of Natural Persons With Regard To
The Processing Of Personal Data And On The Free
Movement Of Such Data and Repealing Directive
95/46/EC.
94 supra Note 92.
95 Commission Regulation 2751/90 of Sept. 4, 2016,
Rules For The Protection Of Personal Data Inside
And Outside The EU, annex, 2016 0.J. (L 264) 37, 38.
96 The Protection of Personal Information Act, 2013,
§ 13, Acts of Parliament, 2013 (South Africa)
97 The Protection of Personal Information Act, 2013,
§ 14, 15, Acts of Parliament, 2013 (South Africa)
98 The Privacy Act, 1993, No. 28, Acts of Parliament,
1993 (New Zealand).

50
information, the parties can be assured of is fake or false being shared with the intent to

their continuing reign. manipulate and mislead people. A set of

guidelines must be framed as to what content

These activities are criminal in nature and
can be posted on these platforms and the
pose serious repercussions on the
process of setting up social media account
functioning of democracy. Cyber Trooping
should be made more rigorous to keep a
activities in general should be categorized as
check on automatic accounts. And, social
a separate offence in order to facilitate
media companies should be liable for any of
identification of offenders who indulge in
the violation of these rules or guidelines.
these activities as well as speedy disposal of

these matters. This will also reduce the Further, ECI needs to be given more powers

complexity involved in litigation in these so that it can issue directions throughout

matters and encourage more reporting of regarding the conduct of political parties and

these activities as well as filing of cases not merely during the time of elections. The

against the same. Model Code of Conduct framed by ECI must

not be merely directory in nature rather it

Also, with the changing face of society and
must be enforceable in the court of law to act
technological advancements, election
as a deterrent to these political parties who
campaigning has not remained merely a 3-4
employ underhand means to spread
months long process starting from the date
misinformation. Also, Decrypting Security
of announcement of election dates to the
Agencies must be established by the
release of results rather it has become an
government who can police such content at
evergreen process commencing right from
the point where internet services are
when a government comes to power and
provided itself to help unveil the real faces
continuing throughout the term. This
behind spreading of such misinformation
campaigning has become more prominent
and to catch incidences of micro-targeting of
and widespread with the increase in the use
advertisements by political parties.
of social media platforms. Though, steps

have been taken to keep a check on these Furthermore, the legislature must take steps

activities like requirement of political parties to define personal information and it must

to submit their social media account details, include all such information that enable

however these steps are far from sufficient. identification of individuals to keep a check

Permanent censor boards are required to be on sharing of data by big companies (social

set up to keep a check on the content being media giants and data warehousing agencies)

shared on social media whether the content to political parties who use this data for

51
micro-targeting of advertisements to

manipulate public opinion.

Therefore, if adequate steps are not taken to

control these activities within appropriate

time, this will greatly weaken the democratic

fibre of our country. Information is the key

to knowledge and awareness which enables

people to make informed choices, and

democracy cannot survive without free and

fairly informed voters as the Apex Court has

rightly said in Union of India v. Association

for Democratic Reforms, "One-sided

information, disinformation, mis-information and

non- information will equally create an uninformed

citiZeny which makes democray a farce.""

99 Union of India v. Association for Democratic

Reforms, 2002 AIR 2112.

52