The black box for boost electoral campaigns

With social isolation due to the pandemic of COVID-19 and the role of the internet today, electoral campaigns were reformulated and we could see that the main form of contact and knowledge of voters with candidates was through Internet. Stories, posts, videos, tik toks, reels, lives, private messages and advertisements on search engines were used strategically to convince voters. However, behind these digital content, which may seem unpretentious, there is a complex scenario. It involves everything from billionaire companies that are subject to other jurisdictions and even the very recent experience of the Brazilian Electoral Justice in drawing limits for digital campaigns. 

This text intends to analyze one of the tools that exist behind the scenes of Brazilian politics and that was central for the candidates elected last Sunday: the purchase of the digital reach of electoral propaganda. In the democratic context, the principle of isonomy ensures that all candidates have the same equal chances. Thus, any practice of expanding the reach of electoral advertisements through money must be closely monitored so that abuses do not corrupt the voter’s freedom of conscience and the final outcome of the ballot box.

Promotion and sponsored content in electoral campaigns

In Brazil, the electoral legislation recognizes branded posts and boosting content as types of the same form of promotion of electoral propaganda. Considering the provisions of art. 26, Paragraph 2 of Law 9.504 / 97, both a Google sponsored advertisement and an Instagram boost publication are subject to the same modest restrictions and requirements by the Electoral Court for their use.

The requirements for boosting content are basic and general and include the obligation to declare all spending on boosting the candidate’s accountability; prohibition of new announcements on election day – even if old impulses are allowed -; prohibition on promoting electoral propaganda by individuals; ad identification – as is done on Google by tracking the term “sponsored” in the search result that was contracted. There are political content ads on Instagram, Facebook and Google, while Twitter and TikTok do not allow this type of paid advertising.

On the other hand, in the face of legislative freedom to boost, some controversial points are, for now, allowed practices, but they must be analyzed with greater attention. There is a problem with the use of keywords for the construction of political ads involving third parties that are not (or should not be) part of the electoral game, the promotion of content that confuses voters, the low transparency of platforms that benefit from the electoral industry and the enormous impact that economic power has on elections. 

Normative gaps – Boulos e Lula case and the pre-campaign

In the present electoral dispute in São Paulo, we had a sample of what the advertising boost can provide to the candidates. In this case, the candidate Guilherme Boulos ran ads on Google that made references to the Partido dos Trabalhadores (PT), in a free translation Workers Party, Luiz Inácio Lula da Silva and even the PT candidate, in order to capture votes from voters seeking information about a candidate that would have an ideological profile close to yours. In this respect, Google defines as “quality score” the factors that make an ad a priority, such as the quality of the advertiser site, the keyword and the user’s history. It is these extremely abstract elements that allow one candidate’s ad to appear in a search for another. 

In Brazilian courts, the article 242, of the Electoral Code, is used to substantiate challenges to these types. The article disposes that electoral propaganda must not “employ advertising means designed to artificially create mental, emotional or passionate states in public opinion”. It is noted that the rule of the courts is freedom of expression, however, sometimes, the main objective of the elections, which consists of a truly democratic and isonomic election, can be lost with this. It is observed that several uses initially not idealized for advertising and boosting platforms are being put into practice.

Among the frequent strategies in the electoral race within the universe of boosting digital content, the purchase of a search result that makes untrue associations stands out. This has been common practice in the electoral game: the overlapping of information from one candidate when the voter searched for another; and, further, attacks on the candidate whose voter sought information.

Thus, it is clear that the boost can be used for uninformative purposes and that, at times, this can cause damage to purposeful campaigns. It is observed that something that is sometimes seen as harmless can bring outlines that can impede the free information of voters. In this respect, the legislative void that permeates the theme of advertisements on the networks proves to be something dangerous and, in general, the Brazilian courts are allowing such practices. 

Finally, another controversial point is the use of boost ads  during the pre-election campaign, which is based on isonomy among pre-candidates. In this context of parity of arms, the ads are constantly being used to violate with this supposed electoral isonomy, since its use is not considered early advertising as long as there is no explicit request for a vote and it is not even counted as campaign expenses, as it does not there is pre-campaign accountability. Thus, it is observed that several pre-candidates make use of this tool to anticipate the beginning of their campaigns, without having to disagree in clear contrariety with the law.

Obligations of transparency of the platforms

Although the Brazilian legislation on digital electoral campaigns is still incipient, any proposal for regulation must be accompanied by evaluations on the real power of effectiveness of the legislation. One of the aspects to be considered is the fact that the main companies that allow paid advertising on the internet are not Brazilian companies. In reality, all of the major companies that offer the service of expanding political advertising are US companies subject to US law.

The Marco Civil da Internet (MCI) is the main Brazilian legislation on issues involving the digital world. Art. 11, §2º of the MCI determines that in matters involving the treatment of data, all companies that offer services and perform such data operations of Brazilians must comply with the national legislation. So, in the case of paid electoral advertising in which the content is directed to the internet user who has a certain profile built from the platform’s database, Brazilian legislation must be followed. 

However, we understand that issues that go beyond the treatment of user data and are related to boosting electoral content are not covered by the MCI, despite the interpretation of the extension of art. 11 demand more in-depth analysis. Considering that the Marco Civil da Internet is characterized as a principiological law that intends to establish the foundations of the legislation on the use of the internet in Brazil, it is expected that more specific and recent issues, such as the transparency obligations of digital platforms, have not been covered MCI and in the future be standardized. 

For example, transparency-boost content obligations are imposed only on the mini-electoral reform – and, this year, by Resolution 23.610 / 19 -, which now requires that all paid electoral digital content be identified. However, this obligation applies to those responsible for payment, and not to platforms. Although several platforms, such as Google and Facebook, have made available ways to identify paid content in order to comply with the legislation, no sanction would be applied to them if there was no such compliance. When this identification requirement was approved, Twitter, for example, stopped making it possible to boost electoral content by not being available to offer ways to identify paid posts.

In addition to the obligation to identify paid electoral content, the transparency of this political campaign strategy is also compromised by the lack of standardization of the information that platforms must make available on paid content. For example, Facebook has a web page, the Ads Library, which informs questions about ads on social issues, elections or politics in general that are funded within the platform. Inside the page it is possible to know who was the investor of the paid content, the value of the ad and the location. 

Web page that displays information about political ads on Facebook platforms:

Another major company that offers services to maximize the reach of electoral content through payment is Google. Google Ads promote better ranking of the candidate, party or coalition’s website, as practiced by candidate Guilherme Boulos and mentioned earlier. However, unlike Facebook, Google does not provide a website with general information about paid content, but an extension that allows the user to have more information about each paid ad when doing a search on the search engine.

Extension that allows the user to have more information about the ads on the platform: 

Although the Electoral Justice requires candidates to provide information about payments made to boost content, other extremely important information is still neglected, such as the keywords applied, the group to which the content was directed and the algorithmic governance.

In addition to the lack of information, the lack of standardization of the platform’s transparency makes it difficult to understand and compare electoral practices, which is related to the concept of visibility management to Flyverbom’s. That is, considering that we currently live in a time when transparency is mediated by the computer, it is known that it is impossible to have knowledge of absolutely all the processes involved in electoral campaigns. However, some information is essential for increasing the rationality of choices – after all, the more imbued with information about political representatives, the better the exercise of voting power – and also to discourage negative behaviors. Thus, transparency efforts must be thought of in a holistic and concrete way, because, in addition to making information available, the true access and understanding of such information must be guaranteed.

The importance of the debate to continue.

The legislative vacuum and the lack of transparency obligations make an electoral strategy tool a potential form of opaque and abusive practices. In this brief text we seek to raise some issues involving the theme in order to collaborate with the long debate involving the use of economic power to promote digital campaigns. If you are interested in learning about the transparency practices of the main social networking companies in the world, access the paper recently released IRIS.

The views and opinions expressed in this article are those of the authors.
Illustration by Freepik Stories