(Kedar Ganesh Dhargalkar is a Third year student at Adv. Babasaheb Apte College of Law, University of Mumbai)
Featured Art: Ordination of verticals by Frantisek Kupka
Once It Is Out There, Good Luck Putting That Genie Back In The Bottle
The statutory substructure of intellectual property and data protection laws can cover only so much. These safeguards are incapable of substantially curbing the wildfire of ‘misinformation’ lit by certain ‘fake news’ creators. The need to control this digital menace is paramount. For not risking the possibility of ‘Offline Riots due to Online Disinformation’, the perpetrators of such fake news need to be sent a message that, ‘You can run but you can’t hide’. Existing information technology, data protection and cyber surveillance laws might be of help in maintaining the originality of a user’s content, but what happens when the actual perpetrators want to hide their identity in plain sight, by taking cover behind echo chambers, fake accounts and digitally-peddled political narratives. Social media bubbles or echo chambers are groups of users and subscribers who knowingly or unknowingly consume the same type of content, political, religious or otherwise and these echo chambers are often the originators of ‘fake news’. These bubbles can be essentially characterized as the hallmark of the ‘WhatsApp University’ and they are the torch bearer of its famous ‘WhatsApp-Forwards’ feature. They are further analysed, cherry-picked and targeted by the social media companies for a group-favoured marketing tactics, but this just ends up increasing the polarisation between such groups.
The advent of social media has democratized the diffusion, distribution and circulation of political and personal news or information. The Guardian columnist Natalie Nougayrede has said in this regard that, ‘The use of propaganda is ancient, but never before has there been the technology to so effectively disseminate it’. With the sophistication and increased viewership of social media handles, an era of social media influencers has taken a hold in the world. The celebrity appeal of certain artists, performers and movie stars or entertainers is often blown out of proportion while consuming their opinions regarding politics in the country. Essentially these people may not be the experts in what they usually stand for but nevertheless their blind fan followers, subscribe to not just their content but to their views on various contemporary socio-political episodes and thus they can end up being the spreaders of ‘fake news’, without having any journalistic accountability. The political parties are also partly responsible for the slow death of honest journalism as they directly or indirectly fund biased media houses, for generating hashtags or broadcasting prejudiced narrativesfortaking over the pre-existing ‘trending ones’. These efforts of ‘artificial trending’ are mainly focused on deviation from the exposures which that respective party agenda may suspect.
‘Fake news’ is never an honest mistake, it’s a deliberate endeavour and ‘Photoshop’ applications are the mother of these necessarily sadistic motives. The author would try to analyse the existing legal structure for curbing the circulation of fake news, then would further put forth a ‘cause and effect’ relationship regarding the drawbacks in that system by giving illustrative examples, and would also touch upon the international perspective of curbing fake news by delving into the structures of foreign legislations pertaining to the subject matter. This would be done by drawing a parallel between that legislation and the Indian scenario and then further testing such a legislative action on the anvil of fundamental rights, vagueness and overbreadth.
The ‘Statutory’ Deck Of Cards Facing The Gusty Winds Of ‘Misinformation’
The existing substructure of statutory safeguards against fake news, misinformation and their terrible effects can be mainly divided into protection under Indian Penal Code, Information Technology Act, and other miscellaneous legislations. As far as the IPC is concerned, it restricts the free speech directly or indirectly, in different degrees and regulates the propagation of, what can be construed as ‘fake news’, through the following provisions:-
Section 124A deals with Sedition, Sections 153A deals with the offences which lead to promoting enmity between different groups on various grounds, Section 292 Mandates punishment for the sale of obscene books, Section295A gives the punishment for the crime of committing deliberate and malicious acts which are intended to outrage religious feelings of any class by insulting its religion or religious beliefs, Section 499 penalises Defamation, Section 505 (1) penalizes any rumour or report which can cause panic or unrest amongst the people, Section 503 Dictates the punishment for criminal intimidation, Section 504 punishes any intentional insult with intent to provoke breach of the peace and lastly Section 505 deals with the statements conducing to public mischief. The Law Commission of India in its 267th report, recommended adding two new provisions to the Penal Code to further discourage hate speech. The report suggests that a section 153C be added to prohibit incitement to hatred and a section 505A to prohibit speech that causes fear, alarm, or provocation of violence
Some distinctively specialized statutory canons of law, like Section 66D of The Information Technology Act read with Section 491 of The Indian Penal Code, prescribe penal action for trying the impersonation of a person or an organization, in a pursuit to slide the imposter’s fake claim as legally legitimate. Moreover, Section 79 of the IT Act, dictates the intermediaries to take action and bring down unsubstantiated or unproven threads of content on their respective platforms. Some other separately or individually applied statutes such as the Disaster Management Act also mandate a punishment for spread of fake news during a segregated time span of calamities and natural disasters, because such deliberate efforts of disruption are prone to cause extreme havoc when done in such time slots.
Apart from such statutes, lawfully recognized bodies such as the Press Council of India, News Broadcasters Association (NBA), Indian Broadcast Foundation (IBF), Broadcasting Content Complaint Council (BCCC) also control, regulate and curb the unbridled transmission of fake news in various arenas of social life.
As far as the international scenario is concerned, countries such as France and Singapore have passed and enforced ground-breaking fake news specific legislation such as the one titled as POFMA (“The Protection from Online Falsehoods and Manipulation Act”), passed by the Singapore Government. Though there have been various unproven allegations regarding its political misuse against the parliamentary opposition in the country, it is crystal clear that the intent or objective behind its enforcement is not one of malice.
Definitional Contours of ‘Fake News’ and its Probable Political Misuse
Ultimately, any kind of fake news legislation would entail some or the other kind of restriction over the availability of free speech. This kind of state action or legislation should therefore stand the tests of reasonableness and proportionality mandated by Part III of our Constitution, which also include the grounds of vagueness, over breadth and chilling effect. Due to the difficulty in establishing the definitional contours of the term ‘Fake News’, it has been identified and associated with other forms of deliberate or sarcastic expressions of speech. This term, is therefore applicable to a heterogeneous and diversely-miscellaneous cluster of expressions, such as, satirical comments, propagandist narratives, biased news coverage, sponsored or promoted content, and barely inconvenient truthful and factual certainties.
The aforesaid definitional uncertainty raises a doubt over the objective of any legislation which would be passed for countering such content. Herein, a fundamental distinction between a ‘fact’ and an ‘opinion’ needs to be clarified and illustrated, for a better understanding of the wide reach of this terminology. Though the terminologies of ‘facts’ and ‘opinions’ have quite contrasting characteristics if compared to each other, they partake in a congruent interplay with the definitional extent or scope of free speech. While there may be an infinite number of ideas or opinions about a fact, a fact is singular and objective. Any sort of ‘fake news’ essentially is based on an uncertified or unsubstantiated fact specifically cherry-picked and manipulated set of facts, which is then interpreted or twisted into an opinion, for furthering one’s personal or more probably political and ideological motive. The court observed the all-encompassing application of a statutory provision, in the Ram Manohar Lohia judgement, by observing that, ‘under the section a wide net was cast to catch a variety of acts of instigation ranging from friendly advice to systematic propaganda….in its wide amplitude, the section takes in the innocent as well as the guilty, bona fide and mala fide advice and whether the person be a legal adviser, a friend or a well-wisher of the person instigated, he cannot escape the tentacles of the section…..it was not possible to predicate with some kind of precision the different categories of instigation falling within or without the field of constitutional prohibitions…..the section must be declared unconstitutional as the offence made out would depend upon factors which are uncertain’.Thus, considering the wide definitional amplitude of ‘fake news’, a legislation for curbing it poses a danger to be exploited and used for stifling, suppressing and suffocating the political opposition. Thereby fake news legislations are prone to a probable political misuse as they can be usurped for standardizing a unipolar political thought and this subdues the free breath of democratically characterized ‘tabling of opinions’ in the public domain.
Constitutional Boundaries Of Proportionality And Vagueness
The court recognized the trisected version of the contents of fundamental right of speech and expression and noted that, ‘There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in’.
Furthermore, the concept of ‘fake news’ implies a falsity in the impugned news item, on the face of it. Herein, certain constitutional parameters forbid the State from legislating any provision that declares any such a false statement for the simple reason that the statement is ‘false’ or that the legislation is enacted in ‘public interest’ or for the sole reason of being beyond the pale of public morality. And unlike its US counterpart, the Indian constitutional jurisprudence does not necessarily and categorically protect factually false statements and thus they’re open to be made criminally liable by statutory provisions.
For the unregimented and unconstrained accessibility to an emancipated right of free speech, it needs to stand sui juris of all the overarching restrictions of any legislative action thereby allowing free breath of discussion and advocacy. Though it is found on a reasonable objective and employs appropriately proportional standards of counter-measures, still such an action would ‘cast a wide net’ and become all-encompassing, if it suffers from the vices of vagueness and over breadth. While observing the expansive application of the terms ‘benefits and services’ in the Aadhar Judgement, the court culled out the grounds of over-breadth and vagueness, by stating that, ‘If the requirement of Aadhaar is made mandatory for every benefit or service which the Government provides, it is impossible to live in contemporary India without Aadhaar. It suffers from the vice of beingoverbroad…. The broad definitions of the expressions “services and benefits” would enable Government to regulate almost every facet of its engagement with citizens under the Aadhaar platform.….The manner in which these definitions have been expansively applied to cover a wide range of activities is attributable to the vagueness implicit in Section 7’.
For avoiding such conflicts with such constitutional riders on free speech, the structure of the provisions embedded in such legislations must’ve “a direct and proximate connection” with any one of the exceptions mandated by Article 19 (2) of the Indian Constitution. Furthermore, such legislation should adopt the “actual malice standard”, i.e., it should avoid the ‘malice in law’ and should only target the ‘malice in fact’. This is the malice involved in speaker’s mind behind the public proclamation of his or her statement and not in the language or wording of statute itself.
In a plethora of judgements, court has held that, ‘… restrictions on the freedom of speech must be couched in the narrowest possible terms’. Unfortunately, as far as fake news legislations are concerned, the narrower and watered down their scope is, the less effective they become, in curbing the unrestrained communication of misinformation.
India’s Struggle With The Menace Of Fake News and Need For A Legislative Counter
India has witnessed the rise in strategic use of fake news for furthering socio-legal and political agendas and or propagandas. Be it the terrorists of ISIS or the students of JNU, unsubstantiated videos or so-called ‘proofs’ always surface to the brim of social media and are tagged as ‘trending’, ‘viral’ or ‘breaking news’, without a deep examination of their authenticity. From our national anthem being recognised as ‘the best in the world’ by UNESCO, to the latest viral, fake-news of a mob attack on the Tanishq Jewellery store in Gujrat, the circulation of unsubstantiated news knows no bounds in India. Fake news about India’s most wanted criminals like Dawood Ibrahim, the 2012 ‘end of the world’ prediction and the viral videos confirming the presence of a tracking chip in the newly minted currency, all point at the fact that such narratives are being unknowingly shoved down the throats of the viewers and the content consumers.
Ultimately fake news is mainly transmitted through social media and this mode of information transference, due to its textual constraints, lacks the clear depiction of author’s intent. Thus, though it may be fake or not, a plainly radical opinion can also have rampant repercussions. This widespread operation is often fuelled by artificially generated communal tensions and can often have aggressive and extensive aftermaths like affray, public lynching or riots. This has been witnessed most recently in the city of Bangalore, where a mob of hundreds gathered for a collective attack on a person who posted objectionable content which upset the sentiments of their community.
Therefore, even though the social media and other micro-messaging interfaces have their pros but the consequential circumstances of the mishaps emanating from their uncontrollable outreach dictate that their cons vastly outweigh their benefits. Therefore, in light of the factual incidences and the deficiency of legal framework in handling such occurrences, tabling a legislative bill specifically targeting the unfettered diffusion of fake news is urgently warranted. Herein, the populace must bow down to the ‘greater good’ or the inherent ‘public interest’ and allow such legislation by recognizing the need for its enactment.
This can be done by first understanding the difference between ‘intent of enactment’ and ‘intent of execution’ must be noted. Publicizing fake information must be made criminally liable, and in the happenstance that such a legislation is passed, it would surely carry the weight of a bonafide enactment and the application of legislative wisdom, but at the same time its malicious use by the ‘executive’, should surely be considered as a potential threat factor by the legislature, prior to the enactment of such a statute. For this, the proportionality of the legislation must be seriously scrutinized on the anvil of existing evil of fake news dissemination and a strict judicial accountability must be ensured for curbing the tendency of governmental overhaul of such statutory provisions.
Leave a Reply