The National Electoral Council (CNE) in Colombia carried out an investigation against one of the candidates for mayor of Tarqui (Huila) in the elections of October 2019, because he used his personal Facebook account in May 2019 to promote his candidacy outside of the terms allowed to advertise for those elections. Recently the CNE, through Press release announced that decided not to sanction the candidate but he did change his doctrine by indicating that the communication effect of social networks implies that the propaganda that is broadcast there is regulated. In other words, it warns that in the future it will apply sanctions for this type of event.
The statement was published 20 days ago but the respective Resolution has not yet been published, however, a text has already been leaked which shows that the CNE analyzed at least three of the most relevant issues that are discussed today about disinformation, electoral discourse and campaigns. Today in the world the public debate on electoral propaganda on social networks has focused on regulating mechanisms to hold internet intermediaries (such as Facebook or Twitter) responsible for what the people who use their networks do. The discussion is part of the great global concern about how to control the "fake news" that affects the democratic debate. The way the CNE approaches the issue is different and refreshing and starts from the selection of the case, a candidate who uses his Facebook account to advertise outside the time limits allowed by law, because as it is not a parade -or notice large format in public space -, a radio station or traditional broadcast, assume you can do it. However, it falls short, it does not give guidelines on how to differentiate the voice of a candidate by making propaganda from that where he expresses opinion, which should be of concern and requires further analysis.
The great challenge that electoral authorities have with technology is how to take the rules and guarantees off the internet to the online world and the most popular reaction has been to go to intermediaries for them to solve it, that is, it is often thought that the solution is to give the order to Facebook -in this case- to moderate this type of content. For this reason, that the CNE begins by extrapolating the criteria of the Corporation related to propaganda - subjects, purpose and temporality - to the new media, is positive. As is also the case that this extrapolation is made with an analysis of the impact of this technology on the electoral process. In line with standards of freedom of expression, the CNE did not impose filters, but rather analyzed the expression after its publication - fundamental, since had it acted before the elections, we would have qualified its action as prior censorship. Supported by reports and studies (in this case from the EOM and the Inter-American Human Rights Institute), the CNE established that the effect that the Internet has on the electoral debate is similar to the impact that the media have traditionally had.
The most interesting thing about the leaked CNE Resolution is that it addresses the problem of electoral propaganda by emphasizing the responsibility that belongs to one of the key players in the public debate in elections and for which special responsibility has traditionally fallen, the candidate . This corporation claims that, due to their condition, this person is the first call to promote responsible public debate. It is an interesting vision in the middle of the great sancocho that is the discussion of "false news" during the electoral processes.
However, the CNE's analysis and approach to this issue is not without problems. It seems that the CNE is entangled because it tries to update the existing rule, which is extremely precise in what it can and cannot be done in the months before an election, in very specific media -from street parades, to radio stations-, with an analogy that is taken to the extreme and therefore ends up pulling the idea too far. It is one thing to argue that the impact of internet propaganda is similar to that of the media, and another is that the treatment and measures applicable to traditional media can be transferred to the internet.
There are several differences between one and the other, but the most important one that the CNE did not consider is that while the internet is a two-way channel -which goes from many to many- traditional media are unidirectional -from one or from few to many -. This is a central difference, the infrastructure, the permits and the centralization of the discourse are very different in each case. To have a radio, a television channel, even a parade, permits are required, the person in charge who gives voice to others is identified. On the other hand, to say something online, an account on a social network is enough and then the impact depends on the scope that person manages to build. So, the impact is similar but the channel, the form, the process are different and therefore the way freedom of expression is materialized in each one is different. These and other particularities of each channel were unknown in several of the points that the CNE addresses in its resolution, but three in particular concern:
1. The scope of the “subject” criterion will have to be moderated when applied to the digital environment. The subjects, says the CNE, are the 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 places the emphasis on the responsibility that corresponds to key actors in the process in the use of the communications of an electoral campaign. However, you must be very careful that the responsibility falls on the person who has it within a campaign and not on the followers. The responsibility of the person who runs a campaign cannot be the same as that of the common citizen, as this would place serious limits on their ability to participate in public debate. The CNE should consider and elaborate better how to transfer this definition to a channel as open as the Internet and, above all, to social networks, so that it is clear that the responsibility of the candidate, the campaign, the party is the one spoken of, not that of his followers.
The CNE is wrong to accept the analysis that the Constitutional Court made in 2012 to equate social networks and the media. It is one thing for the CNE's analysis to allow it to conclude that social networks can resemble the media in impact, given their ability to spread the message, but from there to equate the two channels, as the Court did at the time - judgment C-592 of 2012- is dangerous. The characteristics of these services are different, only those who can access to use their voice in each other demonstrate it: anyone has an account on a social network or opens a web page, not everyone has a means of communication.
In its current wording, plain and simple, the CNE places on the shoulders of any ordinary person who expresses himself on political issues the duty of truthfulness to express himself -the duty of the media- and imposes the duty to retract on who freely expresses an opinion or idea - a duty of the media and designed for them. Surely that was not the scope pursued by the CNE, that what it was analyzing was the responsibility of the candidate because he, like the media, is obliged 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 wrong. But he is even more wrong when he says that there is also room for instant messaging.
Although the case did not refer to instant messaging services, the CNE puts them in the same bag along with social networks. The effect of services like WhatsApp in the public electoral debate is undeniable, but again, it is a mistake to equate a private messaging service with social networks, and to conclude that this is why it is a means of communication is even more worrying . The way in which messages and propaganda circulate and impact the electoral process when using instant messaging services requires special analysis, but it must be done from the particularities of this service and not of eagerness. Since the case did not even refer to this service, it should not have been part of the CNE's analysis.
3. The CNE does not offer criteria or guidelines to indicate what type of messages will be considered “free advertising” that "it can be reported as an own resource subject to the corresponding commercial value". Since a politician constantly communicates by transmitting political messages aligned with what will be his candidacy, or his political exercise, it is also perceived as an exaggeration that everything he communicates is considered propaganda of his campaign (or future campaign). These guidelines deserve a broader and more democratic discussion that allows measuring their effects.
In sum, the resolution takes a positive step: the internet is not a space free of electoral propaganda rules, it is possible to extend the criteria of transgression to the propaganda rules in this environment. But, if the norm is excessively precise -as is the Colombian one about what can and cannot be done-, it will be necessary to adjust it to define it better according to the nature and architecture of the internet. In the process of building these rules, multiple stakeholders, particularly those involved in internet governance, must be counted on and invited. In short, let it be clear that the extreme analogy, for good intentions, may break the system.
By Carolina Botero, director of the Karisma Foundation
Photo credit: Morning brew
