[OPINION] What are the limits of Comelec's social media monitoring?

Legitimate social media posts made by non-candidates are protected speech and beyond the regulatory reach of the Comelec

Emil Marañon III

Published: 9:00 AM February 19, 2019

Updated: 9:19 AM April 9, 2019

The terrain of election campaigning has radically evolved in the past decade. From the traditional rallies and house-to-house visits, candidates' preferred strategy shifted to radio and TV advertisements in the late 1990s to 2000s. In the last two elections, we witnessed how campaigning significantly expanded to the internet. In the 2016 presidential elections, for example, we saw how the internet changed the face of political campaigning, eventually catapulting Rodrigo Duterte to victory.

Not only has the internet allowed ads to seamlessly sneak into our social media timelines, it has also enabled candidates to reach us through their curated pages, giving us that illusion of a “personal” relationship with them by letting us into their personal lives. The last one is done by simulating online hype or support by the following means:

Through contracted (i.e., paid) “influencers” who would hype the paying candidate’s online “popularity” or whose channels will be used to amplify his messages

Through a bunch of young creatives churning out catchy yet loaded memes and posts deliberately designed to be viral

Strategically gaming social media algorithms through trolls and artificial clickers, hoping for a “snowball effect” or for the posts to trend and the messages pushed or boosted to the top of everyone’s timelines

There's so much to absorb, but think of the internet as a desirable medium to reach 67 million Filipinos who are active social media users! 

How much does social media campaigns cost?

In this sense, however, the internet is not a free medium. Controlling, simulating, or gaming the ebb and flow of social media timelines entails significant costs. A post from an Instagram influencer with an average of 100,000 followers would range from P20,000 to P40,000. The rate goes higher or multiply if the influencer has more followers and therefore has a wider reach. Celebrities with social media presence have significantly higher rates than the regular influencer. Twitter and Facebook rates would average from P60,000 to P100,000 per post, again depending on the account owner's number of followers and star power.

To help you imagine further the amount of money involved in social media campaigns, 60 paid tweets and posts from a B-class influencer at P50,000 each would already be P3 million. Multiply that by the number of influencers tapped for the campaign – say 10 – and that would already cost P30 million. That constitutes a chunk of the total allowable campaign expenses for a senatorial candidate, which is from P150 million to P165 million. And that’s for a B-class influencer! How about A-class movie stars and popular “alter-accounts” with 5 to 10 million followers on Facebook or Twitter? Rates could go insanely higher, reportedly to as much as P1 million a post!

Interestingly, the Campaign Finance Office of the Commission on Elections (Comelec) noted that in the 2016 elections, despite pervasive internet campaigning, not a single candidate reported the corresponding expenses for it. That was already a clear violation of Section 14 of Republic Act 7166, which requires all candidates and political parties to report their “full, true and itemized statement of all contributions and expenditures in connection with the election.” In other words, all money spent for election campaigning.

Section 79 (b) defines an “election campaign” as any “act designed to promote the election or defeat of a particular candidate or candidates to a public office.” Undoubtedly, internet campaigning, including paying influencers, constitutes election campaigning and its itemized costs should have been reported.

Social media post is election propaganda

So, recognizing this gap in reporting, the Comelec, through Resolution 10488, finally recalibrated its campaigning rules to expressly cover internet campaigning in the 2019 elections. 

For the first time, Comelec has officially classified “social media post” as “election propaganda,” setting its scope as follows:

Social media posts, whether original or re-posted from some source, which may either be incidental to the poster’s advocacies of social issues or which may have, for its primary purpose, the endorsement of a candidate only.

This definition officially puts  “social media posts” within the regulatory reach of the Comelec and now treated similarly as regular posters and other campaign materials.  

It must be noted at the outset that the thrust of Resolution 10488 is not – and should not be – content regulation. They are transparency and full disclosure, as well as campaigning finance reporting. The resolution is meant to enable the Comelec to trace all sorts of internet ads and campaigns so it can monitor the candidates’ compliance with campaign finance regulations. 

Unlike before, materials published as internet ad or run by and in official sites and social media pages of candidates are now required to have legible or audible words “political advertisements paid for” and “paid by,” just like the regular posters and campaign materials. 

Even on videos Comelec now requires that the “paid for/by” line must appear in letters “equal to or greater than 4% of the vertical picture height.” Candidates should also take note that the notice “political advertisements paid for” and “paid by” must appear throughout the entire duration of the video and not just at the end. 

Another new requirement by Comelec is to incorporate “sign language interpreters and close captioning” in videos intended to be published on the internet. So videos posted by candidates, the team, and their paid influencers technically have to have sign language interpreters and close captioning. Take note that the regulation says “and” and not “or.” (I understand the requirement, but is the close caption not enough for the deaf?) 

This new requirement prompted Mon Jimenez, one of the country’s top creatives and former Department of Tourism secretary, to tweet Comelec Director James Jimenez:

You require that TV materials have closed caption and sign language. Has anyone bothered to check whether this is practical for short (30 or 15 secs.) messages?? The resulting clutter renders the message ineffective. Nowhere in the world!

Also, the regulation is vague as to whether plain text posts/status, personal tweets, or photos in the candidates’ pages or accounts will be required to carry the same warning. Apart form the visual clutter, putting a “paid for and by” warning can also be limiting due to character count limit imposed by platforms like Twitter. Hopefully, Comelec can issue a clarificatory interpretation of its rules as they are implemented; otherwise they will defeat the ephemeral, spontaneous, and candid nature of most social media platforms. 

Candidates and parties are also required to register with the Comelec their website name and web address of their official blog and/or social media page. Apart from the official pages, the Comelec seeks to regulate unofficial ones. The resolution provides that “any other blog or social media page,” even when not maintained or administered by the candidate but when taken as a whole has a “primary purpose the endorsement of a candidate,” will be attributed to the candidate. Hence, all requirements and campaign finance regulations will apply.

Expense monitoring, not content regulation

The second aspect of the resolution is campaign finance reporting. The rule of thumb is that all expenses in producing social media content and in staging a social media campaign must be reported in the candidate’s Statement of Contributions and Expenditures.

Since most social media operations/campaigns are outsourced and carried out by media and PR firms, the Comelec has now imposed on them an obligation to report their terms and arrangements with the candidates or political parties within 30 days after the election. The report should contain the name of the candidate, the nature and purpose of the expense, detailed description of the service, which, of course, calls for the disclosure of the names of the influencers contracted and the amount they were paid. While NDAs (non-disclosure agreements) are industry standards, these are deemed contrary to law and public policy in the context of elections. NDAs clauses are therefore deemed void.

All said, the other side of Comelec’s regulation is the danger that it can trample on basic rights to free speech of private persons. 

The resolution may not have qualified it, but to my opinion the provisions exclusively cover candidates and political parties. Social media posts of private individuals may be covered but only when if their collusion with candidates and political parties is proven. Otherwise, legitimate social media posts made by non-candidates are protected speech and beyond the regulatory reach of the Comelec.

The Comelec should go back to the Supreme Court’s ruling in the controversial case of The Diocese of Bacolod v. COMELEC (GR Number 205728, January 21, 2015), which makes very clear there that the poll body can only regulate expressions of candidates, political parties, and franchise holders; it has no legal basis to regulate legitimate expressions by private citizens.

Even Section 79 of the Omnibus Election Code has made it very clear: “Public expressions or opinions or discussions of probable issues in a forthcoming election or on attributes of or criticisms against probable candidates…shall not be construed as part of any election campaign or partisan political activity...” – Rappler.com 

Emil Marañon III is an election lawyer specializing in automated election litigation and consulting. He is one of the election lawyers consulted by the camp of Vice President Leni Robredo, whose victory is being contested by former senator Ferdinand Marcos Jr. Marañon served in Comelec as chief of staff of retired Comelec Chairman Sixto Brillantes Jr. He is a partner at Trojillo Ansaldo and Marañon (TAM) Law Offices.