Towards A Legal Framework To Tackle Fake News

COVID-19 is not the only thing that has gone "viral" in the first quarter of 2020; with it has also spread the menace of fake news in India, perhaps faster than the virus itself. From inciting communal hatred to offering untested treatment(s) of COVID-19, social media platforms have been inundated with fake posts and messages. While fake news has both incited violence- as evidenced most recently during the Delhi riots- as well as spread fear- as evidenced by false reports on the COVID-19, a comprehensive legislative answer to the predicament evades us. Living as we are in the age of "alternative news" and "deepfake videos"- lent succour by the ubiquitous social media- the time has come to grab the bull by its horns.

The extant framework to tackle fake news is primarily limited to the Indian Penal Code, viz. sections 504 (intentional insult with intent to provoke breach of peace), 505 (statements conducing public mischief, creating/promoting enmity, hatred or ill-will between classes), 507 (criminal intimidation by an anonymous communication) 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and committing acts prejudicial to maintenance of harmony) and 295A (acts intending to insult religion/religious beliefs), along with sections 66D (punishment for cheating by personation by using computer resource) and 67 (punishment for publishing or transmitting obscene material in electronic form) of the Information Technology Act, 2000. However, the application of these provisions is limited to the specific offences made punishable therein; there is no overarching framework to tackle the fake news menace.

Further, much of the regulation of fake news in India today consists of ad hoc responses and knee-jerk reactions (the most (in)famous being the shutting down of the internet). Other measures to curb fake news are administered in scattered fashion such as the circular demanding details of WhatsApp groups' admins or section 54 of the Disaster Management Act, 2005, which punishes the circulation of false alarms/warnings; however, this has a very specific field of operation and can hardly be operationalized in circumstances other than disasters. Other examples are section 3 of the Epidemics Diseases Act, 1897 and the rules framed by state governments under said Act, which are also applicable during the outbreak of an epidemic. It is fair to say that a comprehensive legislative framework to deal with the issue is wanting.

The courts, for their part, have expressed grave concern over the matter, with the two most recent judicial interventions coming from the Supreme Court and the Delhi High Court, when the former directed the Government of India to counter the spread of false information on the COVID-19, and the latter sought the Central Government's response over a plea that, inter alia, apprehends the use of social media in causing riots. The Supreme Court has expressed concern over the misuse of social media in the past too. Last September, it directed the Centre to frame guidelines to check social media misuse. The Centre has, presumably in furtherance of this order, come up with a draft set of guidelines regulating the role of intermediaries under the Information Technology Act. The Delhi High Court is, at the moment, seized of a plea that seeks the removal of false information and hateful speech from social networking platforms. But short of enacting a formal law, the courts' hands are tied, owing to the principle of the separation of the judiciary from the legislature and executive (albeit this principle has been overlooked in the past), thus significantly curtailing the role the courts can play: the Supreme Court has acknowledged as much, especially qua the regulation of social media misuse.

Some countries already have a legislative framework in place to deal with fake news. Singapore's Parliament passed the Protection from Online Falsehoods and Manipulation Act last year, to prevent the electronic communication of false statements or misleading information, and prescribes sanctions up to a maximum fine of S$ 500,000 (roughly INR 2,65,38,000) and maximum jail time of 10 years. Similarly, France and Germany have enacted laws that impose hefty fines on social media platforms in the event of their failure to remove fake news within 24 hours.

It is clear that nations across the globe are taking seriously the challenge posed by fake news and it, therefore, is imperative that India too has a legislation in place at the earliest. However, any such legislation would need to be framed whilst bearing in mind its potential to affect the freedom of speech and expression; it is pivotal to ensure that said legislation does not become a tool to cause a chilling effect on free speech. Also important is the implication(s) of such legislation(s) on the right to privacy of individuals using social media platforms.

The closest India has come to having legislation to tackle fake news is the Draft Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018 ("Intermediary Guidelines") framed by the Ministry of Information Technology and the Personal Data Protection Bill, 2019. The Intermediary Guidelines require intermediaries (such as social media platforms, search engines, ISPs, etc.) to assist government agencies by tracing originators of certain offensive information on its platform (a concern the Supreme Court had expressed). To take the example of WhatsApp, this would mean the effective undoing of the end-to-end encryption that is at the core of the app's user experience. This naturally comes with a range of privacy concerns, and apprehensions of surveillance in the garb of "security". Further, since these are Rules, they have the potential to be regularly amended with relative ease, thus causing great confusion and instability.

Legislation, on the contrary, would be significantly harder to amend and, as a consequence, is a better bet in the long run. The Personal Data Protection Bill, 2019 requires social media companies to verify the identity of their users to, ostensibly, combat fake news which would significantly impinge upon the fundamental right to privacy of said users. In addition,, the Delhi government has recently framed guidelines which penalise the spreading of fake news with up to 3 years' imprisonment and reward those reporting instances of fake news with Rs. 10,000, if said report leads to the registration of an FIR.

It may be noted that most of these legal prescriptions are poorly framed and do not provide anything in the nature of an effective mechanism to tackle fake news, and are concerningly prone to misuse.

Aside from comprehensive measures to identify and penalise fake news, which should include a provision mandating social media platforms to set up internal fact-checking teams to monitor, remove and report fake news on their platforms, in addition to the government setting up its own nodal agency to identify and tackle fake news, the said legislation should also provide for mandatory sensitization of citizens on the various facets of the fake news menace. While civil society, government actors and companies are already carrying out awareness programmes; for instance, fake news classes in government schools in parts of Kerala, Facebook's partnership with fact-checking websites, the setting up of internal fact-checking departments by certain media houses, measures taken by WhatsApp to limit the spread of fake news (measures to increase digital literacy with full-page adverts in newspapers, the introduction of an indicator to identify forwarded messages and limiting the number of times a message can be forwarded) and Google News' initiative to train 8000 journalists in fact-checking and spreading anti-fake news awareness, among others. Albeit these measures are scattered and, often, undertaken on an entirely voluntary basis, there is indeed some merit in the promotion of independent fact-checking as a norm at an organizational level, especially considering that there exists no legal backing to make fake news-sensitization mandatory at the moment.

Seeing as how fake news is a phenomenon capable of causing immense social/political/economic disruption, it is indeed curious why a nationwide legislation addressing its myriad facets is not already in place. There is a lot to be done, and expeditiously at that. Needless to say, such a law will need to have adequate safeguards in place to check the potential for misuse, and will need to ensure a balance of the freedom of expression and the right to privacy with the policy objective of curbing the spread of fake news. Till then, self- regulation is, at the end of the day, an equally pivotal weapon in the fight against fake news. As sage advice says - listen, think, reflect- and corporate lawyers add: don't forget your due diligence!

Prabudh Singh, a graduate of NALSAR Hyderabad, is an advocate based in New Delhi and Siddharth Sunil is a final year student of the B.A., LL.B. (Hons.) programme at NALSAR University of Law, Hyderabad.

[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]