08 Nov

#DebateEnRedes: Why is it difficult to enforce the electoral prohibition on social networks?

Por Celeste Gómez Wagner and Mariela García

Updated 28 de January, 2020 at 3:59 pm

If you only have a few seconds, read these lines:

  • In 2018, the National Electoral Chamber created a register of official websites and social networks of candidates and political organizations in order to avoid violations to the prohibition.
  • According to the National Electoral Code, candidates may not publish statements or call votes by any means, including the internet, starting at 48 hours before the opening of the ballot.
  • Specialists believe that controlling the networks is difficult, and it is not clear whether a given publication is against the norms.

According to the National Electoral Code, the prohibition starts 48 hours before the elections. During that period, it is prohibited to conduct public acts of persuasion, publish or disclose pre-election researches and polls until three hours after the voting ends. In addition, the Code prohibits hosting large events, offering or handing out leaflets within 80 meters of voting locations, selling alcoholic beverages, among other restrictions that may affect the progress of the elections.

Article 64 of the Code prohibits the spread of publications of announcements through graphic means, public routes, mobile and landline phones, publicity in public events, and includes “internet” in a generic way, with to direct reference to social networks. In case of violations, the regulation provides that the federal court with the local electoral jurisdiction must end the announcement.

Sebastián Schimmel, the secretary of Electoral Action at the National Electoral Chamber (CNE), made clarifications about this topic at the radio La Red, saying that “it is necessary to distinguish between the different social networks” because some are based in interpersonal relationships, such as WhatsApp. In such networks, “we cannot interfere unless there is formal and hired publicity, which is prohibited”, he said.

However, Schimmel highlighted that, in open networks such as Facebook and Twitter (editor’s note: as well as Instagram and YouTube), “the prohibitions apply exactly like in other media”, and candidates cannot make publications with the purpose of gaining votes.

If the content of a publication is campaign publicity or advertisement with the purpose of gaining votes, this is “not allowed”, but the secretary admitted that “there is a line that sometimes remains in the realm of subjectivity and other times requires a definition of where an act without to purpose of gaining votes ends and where an act of persuasion begins”.

Regarding the difficulty of controlling and monitoring the networks, Martín Becerra, a professor and researcher for the Conicet (the National Council for Scientific and Technical Research), said to Chequeado that the Code needed an update, and added that “it is convenient and necessary to prohibit paid electoral campaigns, which are more susceptible to being controlled, aiming to avoid – or rather mitigate – distortions caused by the political groups that have more resources for an elections than others.”

According to the CNE norms, candidates and groups must declare their official accounts, and it up to the Electoral Court System to monitor them. “The analysis of the Electoral Court must detect transgressions, what they consist of, the position adopted by the Court regarding the organic content and what to do with leaders who are not candidates, but publish persuasive content on the networks, or to what extent the companies are responsible”, explained María Page, a researcher associated with the Political Institutions Program at Cippec (Center for the Implementation of Public Policies for Equality and Growth).

In turn, Roberto Saba, a doctor in Law at the University of Yale, United States, and professor of Constitution Law at the University of Buenos Aires (UBA) and at the University of Palermo, considered that the issue is focused on “being able to define what can be understood as ‘public acts of persuasion’”, which is referred to in Article 71(f) of the National Electoral Code.

“If we adopt an extremely open interpretation, ranging from the type of ‘persuasion’ happening in a large event in a sports stadium to what we do with friends in an informal conversation, then I believe the norm affects freedom of speech”, said Saba. For that reason, he said, “it is necessary to determine the purpose of this prohibition”.

He highlighted that the purpose of the rule “is to prevent electors from being bombarded with acts by the political parties or people working for them, or by the candidates themselves, until the moment they are about to vote”.

María Esperanza Casullo – political scientist, university professor at the National University of Río Negro, specialist in democracy issues and partisan systems – reflected on the restrictions imposed by the Code and recommended thinking about the purpose of these regulations. “Basically, the idea was to avoid crowds of intoxicated people who might end up fighting”, she said, adding that “the context is different now”, although she also stated that there is a “gray area” regarding the interpretation and applications of the rule.

What did the candidates from the two forces with the most votes publish in 2019?

Chequeado analyzed the activity of the public profiles on Facebook and Instagram of the Nation’s presidential and vice-presidential candidates from October 25 – the prohibition started at 8 a.m. – until October 27, 2019, after the results of the elections were officially communicated according to the data from the provisional ballot.

In the case of the Frente de Todos, both candidates – Alberto Fernández and Cristina Fernández de Kirchner – published on Facebook and on Instagram an image of their ballots at 7:48 a.m. and 7:49 a.m. on October 25, that is, around 10 minutes before the start of the prohibition. Fernández de Kirchner said in her caption: “On Sunday, we are going to vote for everyone’s future. To raise Argentina again. #YoVotoPorTodos”.

After that, during the day, the published photos of Alberto Fernández’s morning walk with his dog, Dulan, and images honoring Néstor Kirchner for the nine years since his death. The photo of Fernándes voting was also present. Fernández de Kirchner’s account also had images of Kirchner and of the moment when the vice-presidential candidate voted.

On Sunday, 27, Mauricio Macri shared his photo voting and a video greeting the people, among other posts. The vice-presidential candidate for the Juntos por el Cambio, Miguel Ángel Pichetto, published videos of the campaign closing in the early morning of October 25 (00:14 a.m. and 00:38 a.m.), before the start of the prohibition.

* The Digital Democracy Room is a project of FGV DAPP in Brazil in partnership with Chequeado, Linterna Verde and Ojo Público. It’s goal is to monitor and analyze the digital conversations regarding the electoral context.

The analysis is available the website of Chequeado here.

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