On 4 April 2024, the Independent Electoral Commission (IEC) hosted the official signing of the Electoral Code of Conduct by the contesting parties and candidates of the 2024 election.

IEC Chair, Mosotho Moepya, accurately described the code as critical for ensuring that “all political parties and candidates have equal opportunities to campaign and communicate their messages to voters”. He warned that “violations of the code, such as unfair campaign practices or discriminatory behaviour, can distort the electoral playing field and undermine the principle of equality in the electoral process”.

The code stipulates all the rules that candidates must adhere to during the election cycle, including the prohibition of language that evokes violence, spreading false information, intimidation, bribery and general abuse of power to influence the outcome of an election among others.

While this code is an essential aspect of the IEC’s mandate to provide oversight, transparency and accountability and to deliver free and fair elections, there is a glaring gap regarding the most powerful tool in the hands of all political candidates: the digital domain.

Political campaigning, advertising and communications within the digital domain include digitally circulated material such as images, posters, infographics, and utterances made by candidates on digital platforms.

The Code’s rules apply largely to traditional forms of campaigning and worryingly exclude the plethora of emerging and potentially problematic electioneering techniques that happen online. For instance, the use of third-party service providers to conduct advertising, profiling and targeted campaigns and the rules that these providers should be bound by are not detailed.

Service provider concerns

The use of these third-party service providers to conduct key functions in elections is not new on the political scene. Media companies, social media and data experts, and political consultants are some of those increasingly featuring in political campaigns and operate freely in the under-regulated area of digital campaigning.

This is particularly worrying as elections across the globe have been affected by the activities of consulting companies providing an array of opaque “strategic services” for political candidates ranging from data mining and voter profiling to targeted advertising and digital campaign execution.

One does not have to look too far to see how these actors and their methods can easily run into ethical murky waters, like the watershed Zupta-Bell Pottinger online campaign in which they provided covert articles, blogs, cartoons and tweets to fuel racial tensions and serve the interests of the State Capture-implicated Guptas and political hopeful Duduzane Zuma.

Read more in Daily Maverick: Bell Pottinger Exposed: Influence unpacks the evils of disinformation

There was also the Cambridge Analytica scandal in which the firm harvested personal data on Facebook for political advertising to influence the 2016 US election. This sparked a global outcry about the transparency of political advertising online, data privacy and the use of digital technologies in election campaigns.

Despite these troubling trends, the use of political consultants and firms to conduct covert campaigns to influence and win elections shows no signs of slowing down and there remains little oversight.

A few months ago, the Democratic Alliance unveiled their contracting of a United States-based public relations firm, KRL International, to promote the party’s interests abroad and to garner stronger support for South Africa-US relations.

Campaigning evolution

It is not uncommon for PR firms to provide reputation management, lobbying and campaign strategies as part of their services to political candidates and to boost certain candidates’ popularity in the corridors of power in Washington. This raises questions about the methods used to achieve these political objectives and to what kind of oversight and standards these firms and professionals are subjected to.

Moreover, it shows that the evolving nature of election campaign methods and tools presents new opportunities as well as challenges that oversight bodies such as electoral commissions need to monitor and safeguard against.

As it stands, a plethora of contentious practices that could fly under the radar in online campaigning through third-party service providers is largely unaccounted for in the IEC’s Code of Conduct. The only mention of harmful practices in the digital domain is the separate online platform Real 411 listed under useful links for reporting online digital harms on the IEC webpage.

This project, which is separate from the IEC and its functions, aims to “ensure that online content is assessed and addressed in an independent, open, transparent, and accountable manner within our constitutional laws and rights”.

The platform describes a complaints process that is reviewed by a digital complaints committee (DCC) comprised of three reviewers from the media, technology and legal fields, and a secretariat. There is no information about who these reviewers are and what their selection process is.

On the one hand, this platform has a slightly better-suited Code of Conduct for elections which names more relevant practices to the digital landscape, including disinformation, hate speech, incitement, and harassment. The website also shows a list of active and previous complaints with their descriptions, the accused and the rulings along with their justifications.

On the other hand, the platform lacks information — reviewers’ selection criteria and identities, its relation to the IEC and links to other accountability institutions — and that weakens its legitimacy and meaningful long-term effectiveness.

This is an oversight function that should be provided by the IEC and it is unclear whether there is any mechanism that links complaints to the IEC’s own Code of Conduct, the Electoral Court or any other state institution.

It is worth noting that while various industry bodies (the banking, credit bureau and direct marketing associations among others) have submitted their codes of conduct to the Information Regulator, the IEC is notably missing from this group. This is an imperative feature of ensuring the Regulator’s effective monitoring and enforcement of compliance by public and private bodies with the Provisions of the Protection of Personal Information Act (Popia).

This is concerning since political parties and their service providers rely on personal data and targeting for prospective voters and their increasing use of digital campaigns makes them a key group that needs to have a Popia-compliant code of conduct for them and their service providers to adhere to.

Oversight battles

The challenge of oversight of digital election campaigns, and political advertising is not unique to South Africa. The International Institute for Democracy and Electoral Assistance (Idea) recently published a policy brief titled, “Codes of Conduct on the Rise: Fair and Ethical Political Campaigning Online” for consideration across the European Union.

The brief takes lessons from the Dutch Code of Conduct for Transparent Online Political Advertising and provides law solutions to balance the tensions between freedom of expression and ethical campaign conduct, and offers specific requirements of stakeholders such as political parties, electoral authorities, and civil society.

This research offers a comprehensive list of requirements for such a code, including but not limited to the provision of information about sponsors and expenditure on advertisements; information about targeting; and information about the use of artificial intelligence systems in political advertising.

It limits practices such as the application of ethical limits to microtargeting (such as by refraining from linking data sets from different sources), the use of psychological profiling for targeting purposes, and the use of foreign money to purchase online political advertisements (other than from party members living abroad).

The recommendations offer simple, clear precautions that candidates and contracted third parties must take to ensure they engage in fair and transparent campaigning and communication.

South Africa and the rest of the world’s electoral commissions and digital regulation bodies have a critical role to play in proactively ensuring that voters and parties are protected from unethical practices. They need to ensure that existing codes of conduct reflect the changing landscape and capabilities of campaigning.

Ultimately politics is a game of influence and some persuasion tactics, while distasteful, may be ethically permissible. It is the role of democratic institutions, civil society, and scholars to ensure a baseline of fairness and permissibility to safeguard electoral integrity. DM