Threat Of Disinformation Has Evolved To Warfare, Can Influence Election Outcome; Govt FCU Meant To Curb This Menace: Justice Neela Gokhale

Justice Neela Kedar Gokhale of the Bombay High Court on Wednesday highlighted the threat posed by dissemination of false information and observed that the right to participate in democracy is meaningless unless citizens have access to authentic information and are not misled by misinformation knowingly communicated with malicious intent.

Justice Gokhale made these observations in her verdict upholding the 2023 amendment to the Information Technology Rules, 2021 empowering the government to establish a Fact Check Unit and unilaterally declare online content related to the government's business on social media. Justice GS Patel and Justice Gokhale issued a split verdict in a clutch of petitions filed by satirist Kunal Kamra, the Editors Guild of India, Association of Indian Magazines and an interim application by News Broadcasters and Digital Association.

“Presently, the threat of disinformation and hoaxes has evolved from mere annoyance to warfare that can create social discord, increase polarisation and in some cases, even influence election outcome. State and non-state actors with geopolitical aspirations, ideological believers, violent extremists, and economically motivated enterprise can manipulate social media narratives with easy and unprecedented reach and scale”, Justice Gokhale observed.

Pointing out the challenges of the "infodemic" era, Justice Gokhale highlighted the potential dangers of misinformation and deep fakes. She highlighted a video clip presented by the Solicitor General, demonstrating deep fakes of prominent personalities such as American actor Morgan Freeman.

“Undoubtedly, rapidly changing information environment makes it easier for misinformation to spread at an unprecedented speed and scale. The requirement of a nuanced regulation underscores the cost of free speech absolutism in this “infodemic” era. There is thus a rational nexus between the impugned Rule and the object it seeks to achieve”, Justice Gokhale observed.

Justice Gokhale said that the amendment was made due to the government's concern about the increased use of social media as a communication medium with unparalleled reach and the perceived danger of spread of misinformation and fake news having negative impact on public order.

“Not only can belief in misinformation lead to poor judgments and decision making, but it also exerts a lingering influence on people's reasoning even after it has been corrected”, Justice Gokhale stated.

Justice Gokhale referred to the Facebook v. Delhi Legislative Assembly case in which the Supreme Court said that such platforms with potential to influence public opinion must be held accountable for spread of disruptive messages and hate speeches.

While citizens are entitled to express opinions not only in an eloquent, logical, or courteous manner but also discourteous, insulting, illogical, and even puzzling expressions, the judgment emphasized that this right does not permit freedom to intentionally share false information.

“Decisions and actions taken by a citizen based on deceptive information is likely to result in deleterious consequences in society and has capability of destroying a body quality and societal harmony thereby endangering national security”, she said. Thus, the due diligence expected of the intermediary in the impugned Rule is reasonable and not arbitrary, Justice Gokhale held.

Justice Gokhale acknowledged that there are bound to be doubts about the government's intention in introducing such a provision in the world's largest democracy with a wide-reaching social media landscape and said that the petitioners' apprehensions are not frivolous. However, she emphasized that regulating free speech to the extent of fake, false, and misleading information can help people “sift facts from fake and make informed decisions about what and how they want their societies to be”.

While acknowledging citizens' right to question the government, Justice Gokhale stated that there is no right to share misinformation or fake content without resistance by the administration in the interest of the rest of its citizens. She opined that the impugned Rule does not go beyond its object and trample any fundamental right of the Petitioners.

The judge concluded that the rule could not be struck down based on concerns of potential abuse. Users retain the right to approach the court if their fundamental rights are affected, ensuring a check on any arbitrary application of the rule, she said.

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