Media Law Column: Social media influencers-turned-political influencers

The right to vote lies at the heart of democratic participation. It is not merely a procedural entitlement, but a substantive right that determines democratic outcomes. For electoral choices to be meaningful, they must be informed choices.

An informed choice requires the voter to have access to transparent, clean and unmotivated information. If the information that shapes the voter’s mind and influences her choices is sponsored - covertly or otherwise - the process of democratic participation is compromised.

The voter’s “right to know” flows from the constitutional guarantee of freedom of expression. An uninformed or misinformed citizenry subverts the essence of democracy. In Association for Democratic Reforms v. Union of India (Electoral Bonds case), the Supreme Court declared:

“The right to vote is a constitutional and statutory right, grounded in Article 19(1)(a) of the Constitution, as the casting of a vote amounts to expression of an opinion by the voter. The citizens’ right to know stems from this very right, as meaningfully exercising choice by voting requires information. Representatives elected as a result of the votes cast in their favour, enact new, and amend existing laws, and when in power, take policy decisions. Access to information which can materially shape the citizens’ choice is necessary for them to have a say in how their lives are affected. Thus, the right to know is paramount for free and fair elections and democracy.”

In the Electoral Bonds case, the Supreme Court emphasised the importance of electoral finance in influencing democratic outcomes:

“[…] [T]he underlying understanding of the legal regime regulating electoral finance is that finance is crucial for the sustenance and progression of electoral politics.

It is believed that money does not vote but people do. However, studies have revealed the direct and indirect influence of money on electoral politics. […] The primary way through which money directly influences politics is through its impact on electoral outcomes.

One way in which money influences electoral outcomes is through vote buying. Another way […] is through incurring electoral expenditure for political campaigns. Campaigns have a measurable influence on voting behaviour because of the impact of television advertisements, campaign events, and personal canvassing. […] For an uninformed voter, electoral campaigns play a much more persuasive role in influencing electoral behaviour because campaigns throw more light on candidates.”

The Electoral Bonds case was concerned with a unique scheme of masked electoral financing where the voter was kept unaware of the identity of contributors and their contributions to political parties, much less the underlying quid pro quo . The scheme was struck down as unconstitutional. The Court’s concern with undisclosed influence in electoral finance echoes a wider pattern where covert actors have shaped political outcomes through data manipulation and targeted digital campaigning.

Elections in several countries such as the United States of America (2016), Kenya (2017), Nigeria (2015) and the referendum in the United Kingdom (Brexit) were reported to have been influenced by Cambridge Analytica. The company acquired and used personal data of Facebook users and developed a profiling system to carry out psychological targeting to influence users’ responses, emotions or behaviour to achieve desired outcomes. Such events reveal that “corrupt practices” in the context of electoral processes have evolved beyond their traditional avatars. Time and technology have spawned ingenuity and innovation. Social influencers peddling political influence may in some cases qualify as one such new age ‘corrupt practice’.

Electoral law has always had to confront the challenging issue of political advertising and spending. The existing law regulates advertisements in television, print and radio. There are rules that prescribe disclosures, accounting of expenditure and other transparency requirements under the Representation of the People Act, 1951, the Conduct of Election Rules, 1961 and the Model Code of Conduct.

Section 176 of the Bharatiya Nyaya Sanhita (BNS) - and the erstwhile Section 171H of the Indian Penal Code - prohibits expenditure on promoting a candidate without that candidate’s authorisation, to prevent proxy advertising. The Election Commission and Press Council have similarly identified “paid news” - covert political content disguised as reportage - as an electoral malpractice that violates transparency norms.

In recent times, the battleground has shifted to the digital arena, where political parties manage to circumvent disclosing expenditure incurred on social media influencers who promote political narratives under the guise of personal opinion. The Election Commission has extended disclosure and certification requirements to digital political advertisements, treating them on an equal footing with traditional media. However, the enforcement of these provisions has been inconsistent and ineffective. That apart, existing measures fail to address surrogate political advertising by social media influencers.

Social media influencers play a crucial role in shaping political narratives. Their content - short, viral and emotionally resonant - has a recall value far greater than traditional political advertising. Political parties find them especially effective because they already enjoy personal brands, loyal audiences and an air of authenticity that engenders trust.

Influencers connect with followers as familiar, relatable, everyday voices. They simplify complex policy issues through humour, storytelling or an emotional connection, making politics accessible to audiences that might ignore conventional news sources. In countries like India, with a large and young voting population that often relies on social media for news, the influence of digital creators is real and the potential reach of such advertising is enormous.

Studies suggest that political posts of influencers can generate up to 70% more engagement than non-political ones, showing how persuasive they can be. For young voters, whose attention spans are tuned to short-form videos and memes, influencer messaging is far more palatable than traditional campaign materials. In India’s 2024 general election, influencer collaborations were reportedly a major plank of online campaigning across parties, with creators promoting partisan messages. These trends are rapidly transforming electoral campaigns, while the law lags desperately behind.

The engagement of social media influencers in electoral campaigns has a two-fold advantage for political parties. On the one hand, it helps circumvent the disclosure of expenditure. On the other, it renders the traditional media increasingly redundant.  Politicians and influencers can now engage directly with vast audiences, bypassing traditional media such as print or television. Media houses are bound (at least ostensibly) by rules that regulate them while social media influencers are relatively free of responsibility and supervision. Social media influencers are not trained journalists and, therefore, are unfettered by editorial oversight, professional ethics or accountability norms. Yet, they exercise an enormous influence on public perception.

The further advantage to political candidates enlisting social media influencers is that the latter are more readily amenable to peddling partisan promotional content while traditional media may want to show at least a semblance of objectivity. Social media influencers are most useful in targeting niche constituencies, which may otherwise be inaccessible to political parties. They are particularly effective in striking a chord with communities in a specific geography, with linguistic or other minorities, or groups with a particular social or political leaning or ideology. This leads to a hyper localisation of the campaign which a political party may not by itself have the ability to achieve.

For influencers, the opportunities for involvement in political campaigning offer greener pastures - larger followings, more sponsorships and contracts. That apart, most often covertly, an influencer receives payment or other favours from the candidate or political party.

The lines between influencers, celebrity endorsers, advertisers, journalists and lobbyists are getting increasingly blurred. The fuzziness of these boundaries can lead to mass manipulation, disinformation and potential foreign interference.

Across the world, social media influencers act as paid surrogates of political actors, creating what has been described as an “information black market.” That they are paid in cash or kind, without disclosure, has multiple consequences:

1. Unaccounted electoral expenditure escaping scrutiny. Huge spending takes place without appearing in campaign accounts.

2. A breach of trust vis-à-vis the voter, who assumes the endorsement is genuine.

3. Hidden quid pro quos, which may never be uncovered. In some cases, influencers could be rewarded through exclusive access, visibility, or other benefits. The lack of transparency surrounding such arrangements renders them akin to paid news.

4. The financial motivation skews the playing field. Typically, a ruling party would be in a far better financial bargaining power to allure or even coerce influencers and peddle their influence.

5. The practice leads to a “dumbing down” of democracy because the greater the impact of influencers, the more diminished the role of genuine journalists and subject matter experts, the less independent application of mind and greater the “follow the herd” tendency.

While the need for regulation is of pressing importance, the difficulties with enforcement are manifold.

Firstly, it is difficult to define “political content”. Every individual is entitled to express an opinion, including political opinion. Therefore, influencers on niche subjects such as food or fashion cannot be precluded from voicing or advocating political views.  Therefore, to identify what constitutes political advertising in the context of social media influencers becomes a challenge.

Secondly, it is difficult to enforce disclosures of financial or other incentives. Influencers fear a loss of face, credibility or authenticity if it is revealed that they have received favours or money.  Influencers are likely to do their utmost to suppress the receipt of rewards from political parties.

Yet, people are entitled to know if their influencers have themselves been ‘influenced’ by other considerations.

The Department of Consumer Affairs issued guidelines in 2023 requiring celebrities who endorse products or services and receive payments in return, to make the requisite disclosures. Yet, no such requirements exist in the case of political advertising by social media influencers. While the Advertising Standards Council of India (ASCI) Guidelines, which constitute the code for self-regulation in advertising, require influencers to disclose material connections with advertisers, no such requirements exist for political advertisement.

One solution would be to require influencers to make a mandatory disclosure of whether or not they have received any compensation monetarily or otherwise from any candidate or party for a political endorsement, particularly while the Model Code of Conduct is in force. Another possibility is to encourage tech platforms to insist upon disclosures and incorporate such requirements in their guidelines.

Political advertising by social media influencers is an area that needs to be addressed carefully. Political expression is, after all, a precious democratic right and the correct balance needs to be struck to protect political speech while ensuring that voters are not beguiled through surrogate political campaigns.

Manufacturing Consent, the title of a pathbreaking book published in 1988 by Edward S Herman and Noam Chomsky on propaganda and mass manipulation through the media, has never had greater resonance than in the age of social media.

Madhavi Goradia Divan is a Senior Advocate and the author of "Facets of Media Law".