Does The Constitution Protect Fake News?

The issue has generated significant discussion within the Indian context as well. Some intermediaries have themselves made attempts to check fake news, such as WhatsApp's ad campaigns and "forwarded" tag strategy (of which the latter arguably backfired). Many have suggested the need for a legal check on misinformation. Online petitions have come up requesting the Supreme Court to take action. The Electronics & IT Ministry recently invited comments on draft amendments to the existing intermediary guidelines. However, some have questioned if targeting intermediaries like WhatsApp would at all solve the underlying problems of mischief, hate and intolerance.

But all this discussion begs an important question. Constitutionally, is the State even permitted to restrict fake news? This calls for an examination of constitutional text. In this short article, I argue that the Indian Constitution's free speech clause prohibits the State from imposing any restrictions on the dissemination of fake news qua fake news. In other words, fake news cannot be regulated on the mere ground that it contains false or misleading information.

Free Speech under the Constitution

This freedom is mainly controlled by two articles. The first is Art.19(1)(a), which reads:

All citizens shall have the right… to freedom of speech and expression;

The Supreme Court has read this article extremely liberally. This right includes the freedom to communicate ideas and information of all kinds. Crucially, it includes the individual's right to use any platform or medium of his/her choice for the communication of his/her thought. In other words, my right to speak is recognized irrespective of the medium or platform I resort to – a public rally, the newspaper, the cinema, the television, or the social media.

Understandably, this right is not absolute. The second article is Art.19(2), which reads:

(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

The expansive right to free speech discussed above can therefore be restricted by the State. But it may be so restricted subject to three conditions. First, there must be a law (statute) in place that imposes the restriction. Second, the restriction imposed must be reasonable. Third, and this is the focus of my argument, the restriction imposed must be proximately connected to at least one of the following grounds: (1) the sovereignty and integrity of India, (2) the security of the State, (3) friendly relations with foreign States, (4) public order, (5) decency, (6) morality, (7) contempt of court, (8) defamation and (9) incitement to an offence.

Importantly, this list of grounds is exhaustive. There cannot be a tenth justification. Consider some speech-regulating laws in place today and see how they pertain to one of these grounds. We have laws prohibiting incitement to riot (public order), libel (defamation), obscene speech (morality), and comments scandalizing or lowering the authority of any court (contempt of court), etc. Therefore, when we ask if the State can make a law regulating fake news, we must first ask whether the regulation of fake news has a proximate link with any of these nine grounds.

Fake News and Art.19(2)

Before we go to the grounds, we must examine why we want the State to regulate fake news. Is the problem the misinformation itself? Consider seemingly innocuous misinformation like false claims about GPS trackers in currency notes. Or is the problem something else, something that results from the misinformation? Examples of the latter are public alarm, unfair political mileage, loss of the army's morale, mob lynchings, or harm to someone's reputation etc.

If our target problem is the misinformation itself, i.e. if we simply want to stop people from lying irrespective of whether the lie has other consequences, none of the nine grounds could help us. (1), (2), (3), (7), (8) and (9) are nowhere in the picture. Neither is (4), as "public order" is understood by the Court as a violence-based standard. This leaves "decency" and "morality". The jurisprudence on both grounds is presently somewhat underdeveloped. The Court's last words on these grounds suggest that "decency" is limited to checking indecent acts of a sexual nature, while "morality" refers to constitutional morality, i.e. notions of right and wrong derived from the constitutional meta-principles of liberty, equality, dignity, secularism, democracy, etc. We do not yet have enough concrete cases where these vague principles have been explained more clearly, but it seems fairly unlikely that they would justify a law seeking to protect people from false information.

Alternatively, then, our target problem could be the consequences of misinformation. But we run into a similar hurdle again. Which of the nine grounds can possibly encompass the idea of preserving the collective morale of the armed forces, or that of preventing political parties from gaining unfair political mileage? Of course, there are some potential consequences of fake news circulation that would fall squarely within the ambit of Art.19(2). E.g., if a piece of fake information is also defamatory (e.g. "X was caught taking a bribe"), obscene (e.g. circulating a morphed nude photo of an individual) or inciteful (e.g. "X consumes beef and must be lynched"), its circulation may very well be regulated – even punished. But that is so not because the State is targeting fake news. Rather, it is because the State is targeting defamatory, obscene or inciteful information that also happens to be false.

Therefore, any false information that falls short of the legal thresholds of defamation, obscenity, incitement, etc. cannot be legally regulated. These standards are often quite stringent and tough to meet. E.g., even strong advocacy of violence is not enough to constitute an Art.19(2) problem. The "public order" threshold is met only when the speech stops being mere advocacy and turns into incitement. The crucial difference between these two is a matter of listener autonomy: if the listener (or the recipient of a WhatsApp message) has enough time and opportunity to deliberate on the speech/message and decide her course of action, the speaker is not responsible for the unlawful acts that the listener might perform after such deliberation. Only the listener herself is responsible for those acts. It is only when the speech/message resembles a "spark in a powder keg" situation that the speaker may be punished.

My limited point is that not all fake news is regulatable under the Art.19(2) grounds. E.g., mere rumour-spreading is unlikely to qualify as a "public order" problem. This would be so even if the rumours were accompanied by a few violent remarks here and there. In other words, the Constitution does not permit the regulation of fake news qua false information, even though it may permit the same qua incitement, defamation, or hate speech, etc. One may very well take this state of affairs to be acceptable (even desirable) and believe that the proper way to counter misinformation is public education, not punishment. Or, one could view this as a shortcoming of our Constitution. Whatever the case may be, one thing is clear: the Government's efforts to check fake news must target additional elements of it – over and above mere misinformation – in order to survive constitutional scrutiny.

The dangers of a vague law

What is said so far exhausts neither constitutional nor policy issues that fake news regulation might raise. E.g., one big reason to worry about potential (and existing) fake news legislation is vagueness. It is an accepted principle of free speech theory that laws restricting speech must be clear and precise. A vague law that curbs speech is per se unconstitutional. The reasons behind this principle are many, but most relevant to our present discussion is the concern that vague laws, because of their inherent subjectivity, can be interpreted in several unpredictable ways. This gives the implementing agency (the Government, the police or an intermediary company) a tool to crack down on unfavourable speech. Consider the following statement in a recent UN Joint Declaration on Fake News:

"General prohibitions on the dissemination of information based on vague and ambiguous ideas, including "false news" or "non-objective information", are incompatible with international standards for restrictions on freedom of expression, as set out in paragraph 1(a), and should be abolished."

Specifically, a vague fake news legislation could easily be used to curb political dissent or opposition and other forms of legitimate expression. What would stop the ruling party from targeting those alleging rigging of the 2014 general elections or corruption in the Rafael deal? The former is not even hypothetical: legal action has reportedly been initiated against the self-proclaimed cyber expert under the vaguely and broadly worded Section 505 of the Indian Penal Code.

Also consider the live example of Malaysia. Its enactment of a criminal prohibition on fake news last year raised a big controversy. Fake news is defined in the Act as any news, information, data or report that is "wholly or partly false". The UN Special Rapporteur on Freedom of Expression has condemned the law for the vague definitions and disproportionate punishments it prescribes. He further added that "[a]llowing for public officials to determine what is true and what is false may confer excessively broad discretion to prosecute criticism of the government, political campaigning or the expression of unpopular, controversial or minority opinions." Note that one of the first people to be investigated under this overbroad law was the current Prime Minister, Mahathir Mohamad, then a political opponent of the then-Prime Minister, Najib Razak.

I would not suggest that it is impossible to draft a precise enough law for this purpose. I would merely stress the need for extreme care in drafting, as trying to distinguish punishable fake news from legitimate speech is a delicate and tricky task. It is true that irresponsible and unproven statements may lead to terrible consequences. Regulation might hence seem somewhat desirable. But it is also true that the State is far from a politically neutral actor. We hence ought to be careful in entrusting to it the enforcement of laws that it could abuse to strike at dissent and democratic dialogue.

The way forward

Our Constitution does not permit legal regulation of false information as false information. Neither does it permit vaguely-worded restrictions on speech. But legal regulation of speech is not the only solution to the problem posed. Community and/or technology-based solutions may be considered. Like Canada, we could have educational campaigns to teach the next generation techniques to spot fake news online. Like the United States, we could invest in technology that uses smart algorithm to spot fake news. Social media platforms may be encouraged to self-regulate content online and develop algorithms to spot rapidly spreading information and check its veracity. And, as the recent UN Joint Declaration states, the Government must discharge its "positive obligation" to (inter alia) "promote a free, independent and diverse communications environment, including media diversity, which is a key means of addressing disinformation and propaganda." (Paragraph 3)

Finally, the traditional solution of 'more speech' should be explored. Almost exactly a century ago, Justice Oliver Wendell Holmes, famously dissenting from a majority of the U.S. Supreme Court in Abrams v. United States, wrote these immortal words:

"But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out."

We must strive to develop mechanisms that secure the adequate availability of accurate information online. The Government should take an active interest in developing platforms dedicated to publishing verified information about matters of public interest. Alternatively, the Government could support or collaborate with organizations which are already doing this. Consider the website AltNews.in, which identifies fake information being circulated on media platforms and exposes it on its platform. Its editors, as per their own account, have "no political affiliations", "call out fake news without fear or favour" and "ensure that fact-checks are backed by sound evidence". Some others have taken up the cause of presenting accurate facts through their media platforms.

Therefore, the mere lack of legal routes does not render us helpless to the menace of fake news. A collective effort by the Government, the media and other stakeholders (including us) would hopefully bring us closer to the model marketplace of ideas envisioned by Justice Holmes – one where truth and falsehood can freely wrestle in a fair bout.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]