Election Management Body Approaches to Countering Disinformation

3. EMB Codes of Conduct or Declarations of Principle for the Electoral Period

While EMBs generally lack authority to sanction or deter the behavior of foreign disinformation actors, they may have a mandate to set standards and norms for domestic actors. Codes of conduct are a tool used by some EMBs to define how political parties, candidates, media or the electorate at large should behave during the electoral period. In recent years, some EMBs have moved to fill the normative and regulatory gap that exists around the use of social media in elections by creating codes of conduct, codes of ethics or declarations of principles (for the purposes of this subcategory, these are collectively referred to as codes of conduct, meaning documents outlining normative behaviors for the electoral period). 

Codes of conduct can either be voluntary, non-binding agreements that result from a consensus among the parties, or they can be part of the legislative and regulatory framework that is binding and enforced. Codes of conduct for the use of social media in elections include examples of both types. Voluntary, non-binding agreements tend to be shorter in length, committing signatories to broad principles. Those that have some weight of enforcement, of necessity, contain provisions that have greater specificity. 

“[The Principles allow] us to say that our political parties agree on a set of rules and it is a first step in moving towards developed democracy where political opponents respect one another and demonstrate issue-based discussions. In the long term, having a culture of dialogue instead of negative campaigning and defamation of political candidates is the goal of this document.” — IFES Interlocutor at the Central Election Commission of the Republic of Georgia

The guidebook section on Norms and Standards discusses regional frameworks and other transnational examples of norm setting around disinformation. The guidebook section on Legal and Regulatory approaches to countering disinformation discusses a larger array of legal approaches governing the use of social media in elections. This subsection is limited to codes of conduct that address disinformation (exclusively or in combination with other problematic electoral behaviors) and are created and promulgated by EMBs to govern the conduct of political parties, candidates and their supporters, or the media during elections.

3.1 AUDIENCE

EMB codes of conduct intended to limit disinformation can be directed toward various electoral stakeholders and can be limited to a specific election or exist as a standing document. The Central Election Commission of the Republic of Georgia, for example, narrowly tailored their counter-disinformation guidance in their “Ethical Principles of Candidates of 28 October 2018 Presidential Elections” to presidential candidates in the specified election.  Panama’s Digital Ethical Pact broadly addresses “users of digital media” in the context of elections. South Africa’s “Code of Conduct: Measures to Address Disinformation Intended to Cause Harm During the Election Period” (in draft form as of December 2020) is aimed at “every registered party and every candidate” with additional obligations under the code for how those parties and candidates must take appropriate recourse against any member, representative or supporter who behaves in violation of the code. Nepal’s “Code of Conduct to be followed by Mass Media, Non-Governmental Organizations and Observers1 has chapters addressing different audiences. 

Internal codes of conduct that political parties voluntarily adopt to govern the behavior of their candidates and members are discussed in the guidebook section on Political Parties.  

3.2 DEVELOPMENT PROCESS

Particularly in the case of codes of conduct that rely on the voluntary commitment of signatories, a consultative development process can increase the legitimacy of the document. In their 2015 guide on developing social media codes of conduct, International IDEA recommends that EMBs “engage in a consultation process with a broad range of electoral stakeholders, especially journalists, bloggers, government agencies, and political commentators, that begins in the pre-electoral phase of an electoral cycle.” Consultations with civil society actors who represent different marginalized groups is also encouraged.

In Indonesia, Bawaslu conducted a highly consultative process in the development of their declaration to “Reject and Counter Vote Buying, Insults, Incitements, and Divisive Conflict in the 2018 and Pilkada and 2019 General Election.” The pledge was signed by 102 participating organizations after a 3-day consultative event that included CSOs, universities, religious organizations, and youth groups.2 Signatories committed to a seven-point declaration rejecting intimidation and disinformation. This consultative process created a network of known and trusted actors that Bawaslu continued to work with on issues of disinformation and incitement throughout the 2018 and 2019 electoral periods. In this instance, the process of creating the declaration and the network of actors that came out of it was of equal if not greater value than the substance of the code itself.  Bawaslu’s coordinated, multi-stakeholder responses to disinformation are explored in more detail in the subsection on EMB Coordination with Civil Society

3.3 COMMON ELEMENTS

Codes of conduct that address disinformation can take many different forms. In some countries, a commitment to refraining from sharing disinformation is included as part of a broader code of conduct that covers all forms of conduct during an electoral period. In others, a code to deter disinformation is created to stand on its own. Some codes are only a few hundred words in length; others are much longer. Despite these differences, there are several common elements that could be considered by other electoral authorities looking to develop their own standards:

 

Definitions

Because the array of content that can be considered disinformation is relatively broad, it is necessary for electoral authorities to define the scope of violations that they view as falling under their authority. Particularly for codes of conduct that have some element of enforceability, the provision of clear and specific definitions is essential for enforcement.

South Africa’s code is drawn narrowly to limit its application to the electoral period and ground it firmly in the broader legal and regulatory framework in South Africa. Disinformation is defined as “any false information that is published with the intention of causing public harm.” That reference to public harm is based in the 1998 Electoral Act, which defines “public harm” as “(a) disrupting or preventing elections; (b) creating hostility or fear in order to influence the conduct or outcome of an election; or (c) influencing the outcome or conduct of an election.” This narrowly drawn definition creates gates around the types of disinformation that fall under the responsibility of the EMB; the EMB’s code addresses false information, published with intent to threaten the integrity of the electoral process.

Commitment to Freedom of Expression

Any code of conduct designed to deter disinformation will place bounds on what speech is allowable in an electoral context. As outlined in international human rights declarations and many national constitutions, any limitations on freedom of speech must meet a strict degree of scrutiny. As such, multiple EMBs have opted to include explicit recognition of the commitment to freedom of expression in the text of the code itself.

South Africa’s code, for example, includes an affirmation that efforts to curb disinformation must “tak[e] into consideration the right to freedom of expression” contained in the national Constitution.3 The introductory language to Panama’s Digital Ethical Pact outlines the challenges of disinformation and social media while noting that “it is important to remember that freedom of expression and respect for the civil and political rights that have been so difficult to achieve in a democracy, are and should continue to be, the guide for us to have a better Panama in the future.”4

Ban deliberate sharing of fake news

A core element across codes of conduct intended to limit disinformation is a provision exhorting signatory parties to refrain from knowingly sharing false information. This is drawn more or less narrowly and is framed differently in each code. The Georgian Ethical Principles include broad guidance to “abstain from dissemination of false information with prior knowledge,”5 but provide no additional details. Panama’s Digital Ethical Pact includes a call for signatories to be vigilant before the appearance of ‘fake news’ or false information that may endanger the electoral process, and imputes a proactive responsibility for signatories to seek reliable sources of information before sharing messages that may be false.6

This prohibition against the intentional sharing of false information may have precedent in broader national electoral law and general codes of conduct, and may extend existing principles that cover traditional media or campaigning to the realm of social media more specifically. In South Africa, the (draft) disinformation code of conduct is meant “to give effect to the prohibition against intentionally false statements contained in section 89(2) of the Electoral Act [73 of 1998].” Nepal’s code, which covers all aspects of the electoral period, calls on the mass media “not to publish, broadcast or disseminate the baseless information in favor of or against [a] candidate or political party on electronically used social networks such as S.M.S. [sic], Facebook, Twitter, and Viber.”7

Restricting deceptive online behaviors used to promote campaign content

In addition to guidance or limitations on the type or quality of content that signatories can use during campaign periods, codes of conduct can also provide restrictions related to what online behaviors are outside the bounds of ethical campaigning. This most often takes the form of exhortations to refrain from using specific techniques of artificial or manufactured amplification in ways the EMB perceives to be unethical or deceptive.

Panama’s Digital Ethical Pact, for example, instructs signatories to refrain from using false accounts and bots to misinform or promote electoral propaganda.8 Provisions of this nature must strike a difficult balance given that the disinformation tactics of malign actors continue to evolve. Too narrowly defining the discouraged online behaviors leaves open the door to a range of other tactics that are being used; too broadly-defined measures have little meaning or deterrent effect. Tying these tools to their potential deceptive uses, as Panama’s Pact does, is an important approach to strike that balance. A blanket ban on tools like bots would likely be overly onerous and prevent their legitimate use as, for example, part of an effort that provides information to voters on how to cast their ballot.

Prohibitions against incitement to violence and hate speech

In addition to discouraging the dissemination of false information, codes of conduct might also establish the expectation that candidates, parties or other signatories will refrain from incitement to violence or hate speech in campaigning.

Panama’s Digital Ethical Pact instructs digital media users to avoid “dirty campaigns” that “offend human dignity through the use of insults, incursions into privacy, discrimination” or “promote violence and lack of tolerance.”9 Georgia’s Ethical Principles instructed the presidential candidates to “refuse to use any hate speech, or statements that involve xenophobia or intimidation.” South Africa’s code does not explicitly prohibit hate speech, but its definition of “public harm” includes content that “create[s] hostility or fear in order to influence the conduct or outcome of an election.”10

Some codes of conduct also prohibit hate speech based on particular identity categories, including gender, and specifically prohibit violence against women in politics. Codes of conduct must include specific reference to gender-related hate speech and online violence and harassment against women in politics so that actors are held accountable for these specific acts. For example, Guyana’s 2017 Code of Conduct for Media – developed through the election commission’s engagement with leading media representatives – enjoined the media “ to refrain from ridiculing, stigmatising or demonising people on the basis of gender, race, class, ethnicity, language, sexual orientation and physical or mental ability” in their coverage of campaigns and elections.11

Application of a social media ban to the campaign period
It is also possible to use a code of conduct as an opportunity to set standards for the behavior of signatories during the defined campaign period, which may include limitations on social media use during a silence or blackout period directly before Election Day. Panama’s Digital Ethical Pact requires signatories to “collaborate with the Electoral Tribunal so that the electoral ban is respected and electoral campaigning is only carried out during the allowed period 45 days before the internal elections of the political parties and 60 days before the general election.”12 Nepal’s code stipulates that during the electoral silence period votes cannot be solicited through campaigning via social media or other electronic means.13 As discussed in the legal and regulatory section of this guidebook, the specifics about what types of content are restricted outside of the campaign period should be clearly defined. For example, authorities may choose to disallow paid advertising, while allowing organic posts on the personal accounts of candidates and parties.
Proactive obligation to share correct information
Codes of conduct may require signatories to not only refrain from sharing false information, but to actively work to correct false and problematic narratives that do circulate. South Africa’s draft code obligates parties and candidates to address disinformation, “including by working in consultation with the Commission to correct any disinformation and remedy any public harm caused by a statement made by one of their candidates, office-bearers, representatives, members or supporters….”14 While not yet observed in practice, including a proactive responsibility for parties and candidates to work with the election commission to counter false or problematic electoral narratives does provide the Commission with an additional avenue for disseminating corrections, counter-narratives or voter information messages as part of a crisis communication strategy. South Africa’s code also requires signatories to publicize the code and educate voters about it.15

3.4 Enforcement

Codes of conduct, as noted above, can be voluntary and nonbinding agreements or they can operate in conjunction with the legal and regulatory framework, allowing some degree of enforcement. Both voluntary and enforceable codes establish normative standards for signatories of the document. For voluntary codes, establishing norms through the public commitment of candidates, political parties and other relevant electoral stakeholders might be the sole purpose of the code. 

EMBs have varying degrees of legal authority and capacity to enforce codes of conduct. In the Georgian case, the decision to adopt a declaration of principles rather than a code of ethics was done, in part, out of a recognition that the CEC lacked an existing mechanism for implementation or enforcement.16 In the case of South Africa, the EMB’s enforcement mandate predates the code on disinformation, as they also have enforcement capabilities in regard to the general Electoral Code of Conduct and in the broader legal framework. The South African code defines the boundaries of the EMB’s enforcement capacity, noting, for example, that if the EMB considers any content that comes to them as a result of the code of conduct to be a violation of existing criminal laws, then it will be duly referred to the appropriate law enforcement agency.17 Similarly, the commission stipulates that it will refer complaints against members of the media to existing bodies that have oversight of the press.18 

Even when codes are situated in a clear legal framework, they are less weighty than other types of legal or regulatory deterrents. Vice-Chairperson of the South African IEC, Janet Love, characterized the IEC’s enforcement of the Digital Disinformation Code as “measured” rather than “aggressive.”

“We can’t pretend to have a bazooka when in reality we have a firm stick.” -- Vice-Chairperson Janet Love, Electoral Commission of South Africa

Though codes of conduct carry less legal weight, they do provide a flexibility that may be very attractive to EMBs. An enforceable code of conduct may be more easily and expeditiously adopted and led by the EMB, in comparison to a regulatory or legislative reform process. An enforceable code can provide EMBs with a “firm stick” by which they can strongly encourage compliance without resorting to lengthy legal proceedings that may drag on too long to allow for timely remedy.  Codes of conduct can also side step serious harms that could stem from using revisions to the criminal code as an alternate approach. A further discussion of the potential harms of criminalizing disinformation are discussed in the guidebook section on Legal and Regulatory approaches to countering disinformation.

 

 

 

Footnotes

1Nepal’s code of conduct is not specifically focused on digital communication tools, social media or disinformation, but it is included as an illustrative example of how provisions relevant to disinformation can be integrated into a larger document

2Mohan, Vasu and May Jacobs, Tanya Azuaje, Kyle Lemargie and Carla Chianese, “The Race Against SARA and Hoaxes in Indonesian Elections,” IFES Working Paper, 2020.

3Explanatory Memorandum of the Draft Code, Section 4.1

4Explanatory Memorandum of the Draft Code, Section 4.1

52018 Presidential Election Campaign agreements, Clause 2.

6Commitment of Digital Media Users, Clause 4

7Chapter 5, Section 14(j)

8Commitment of Digital Media Users, Clause 3; translated from Spanish

9Commitment of Digital Media Users, Clause 3; translated from Spanish

103(2):b

11II(1):ii

12Commitment of Digital Media Users, Clause 1; translated from Spanish

135(d):3

14Explanatory Memorandum of the Draft Code, Section 17.

154(1):c-d

16Stakeholder interview

17Explanatory Memorandum to the Draft Code, 4(3)

18Draft Code South Africa, 6(1)