Fake News and Us – A Legal Perspective

The words of the Director of the World Health Organisation, Adhanom Ghebreyesus, say it all – “We are not just fighting an epidemic; we are fighting an infodemic. Fake news spreads faster and more easily than this virus and is just as dangerous”.

The COVID-19 crisis has not only opened our eyes towards the various problems concerning the state of our healthcare systems but has also displayed the potentially dangerous effects occurring due to the spread of fake news and information. This menace, which is not unique to our country and is a global phenomenon, has the potential to wreak catastrophic damage on all efforts put in to combat this deadly virus. Therefore, it is the need of the hour for every one of us to maintain “information hygiene“.

The definition of what constitutes fake news is simple enough.  They are usually false stories that appear to be news, spread via the internet or other media platforms, usually created to influence political views or as a joke[1]. What starts as a joke eventually spreads like wildfire and the result is a disarray of information that comes at high costs. The COVID-19 scenario is not the only instance where our society has faced a threat from this digital enemy.

Ever since the World Wide Web has achieved functionality on a commercial scale, the menace of fake news has threatened the accuracy of our information. In fact, in recent times, the turmoil witnessed in our country along the lines of political issues like the revocation of Article 370 by the Narendra Modi government and environmental issues like the flood crisis in various states like Kerala opened a floodgate of fake news and information. Fake news is an anathema to the efforts of the society to regroup after a significant incidence of crisis. It paralyzes people and also in many instances, lies at the core of riots and other forms of violence. This menace thrives during the time of a crisis, and the pandemic that threatens human life all over the globe once again reminds us of the need to tackle this problem with effective means.

While analysing the legal system in our country in search of an effective means to counter this menace, one reaches the unequivocal conclusion that there is no overarching legal framework in existence to tackle this problem. On the contrary, there are many sections from various statutes and Acts of Parliament that can serve as a protective measure. However, these sections are specific and do not encompass all the modes, means, and actions by which the threat of fake news runs rampant. In the following paragraphs, these sections will be highlighted for your understanding.

The Indian Penal Code of 1872 provides several sections that can serve as a deterrent to fake news. 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 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) of the IPC have been employed a great many number of times to take criminal action in situations where fake news has been circulated to achieve the above-mentioned illegal purposes. But then again, the applicability of these sections, as seen above, is very limited.

Another statute that draws our attention in this regard is the Information Technology Act of 2000. One would expect this particular statute to offer countermeasures to this menace. But unfortunately, the IT Act sections contains only two sections viz. section 66D (punishment for cheating by personation using a computer device) and 67 (punishment for publishing or transmitting obscene material in electronic form) which can serve as an effective legal measure to the threat of fake news.

It is interesting to note the government’s response in handling the issue of fake news and to study the rules which govern such governmental action. It has been observed that the government often employs crude strategies like Internet Shutdowns to control the spread of fake news. The most recent example, undoubtedly, will be the Internet Shutdowns in the erstwhile State of Jammu and Kashmir following the revocation of Article 370 of the Constitution of India. One of the questions that were discussed during that period was the source of the said power of the government.

In August last year, the government notified the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules under the Indian Telegraph Act, 2017, which lays down the procedure to put the restrictions on internet access. Prior to the promulgation of the Temporary Suspension of Telecom Services Rules (hereinafter, the Suspension Rules), Internet shutdowns were ordered under two legislations, i.e., Code of Criminal Procedure 1973 (CrPC) and Indian Telegraph Act 1885 (ITA).

Internet shutdowns were ordered by district magistrates or police officials under section 144 of the CrPC, which gives district magistrate the powers to issue directions to maintain public order in areas falling under their jurisdiction. Section 144, which has gained notoriety for its indiscriminate use to suppress anti-CAA protests, gives wide discretionary power to the state to freeze the civil liberties.

The Suspension rules confer powers upon the competent authorities (Secretary to the Home Ministry/Home Department) to issue a direction for a blanket ban on internet services. It also provides if the prior direction of the competent authority cannot be sought, then such order may be issued by an officer, not below the rank of a Joint Secretary to the Union or the State government, authorized by the respective secretary in this regard. However, in such situations, the joint secretary is required to obtain the confirmation of the suspension orders within 24 hours of the imposition of the shutdown.[2]

Section 54 of the Disaster Management Act of 2005 also deals with the problem of fake news. According to this section, “whoever makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic, shall on conviction, be punishable with imprisonment which may extend to one year or with fine.” This section also, however, echoes the lament of its limited applicability.

Recently, the government has taken significant measures to step up its game against fake news by introducing Draft Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018 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. However, this has led to a question of privacy and apprehensions of surveillance in the name of security. Moreover, the nature of the rules also open up the scope for easy amendments, which may be for the better or worse.

The Personal Data Protection Bill 2019 requires social media platforms to verify the identity of their users to ostensibly combat fake news. Additionally, the Delhi High Court has also prepared a set of guidelines that penalize the spreading of fake news with imprisonment up to 3 years and a reward of Rs.10,000 for those who report instances of fake news if the report leads to the registration of an FIR.

Across the globe, there are examples of many countries having legislations in effect to tackle fake news.  The Parliament of Singapore passed the Protection from Online Falsehoods and Manipulation Act in 2019. This was enacted with an objective to prevent the electronic communications of false statements and misleading information. This Act also provides for hard sanctions if found guilty in the form of a fine of S$500,000 and imprisonment for up to 10 years. Following this trail, France and Germany also have made legislations that seek to impose hefty fines on social media platforms in the event of their failure to remove content, which is categorized as fake news.[3] 

Fake news is a phenomenon that can disrupt the social, political, and economic landscape of any country with devastating effects. We are again reminded of the need for a legislation in place to combat this menace effectively if we are to maintain “information hygiene”. India must follow suit to the other countries mentioned above as the virus of fake news has the potential to evolve to a threat that can severely limit our access to correct and information therefore crippling all our efforts in this trying time.

[1] Dictionary.cambridge.org. 2020. FAKE NEWS | Meaning In The Cambridge English Dictionary. [online] Available at: <https://dictionary.cambridge.org/dictionary/english/fake-news&gt; [Accessed 14 May 2020].

[2] Bhadauria, V., 2020. Internet Shutdown–Validity And Legal Procedure Of Such Orders. [online] Indialegallive.com. Available at: <https://www.indialegallive.com/top-news-of-the-day/news/internet-shutdown-validity-legal-procedure-orders-80614&gt; [Accessed 14 May 2020].

[3] Singh, P. and Sunil, S., 2020. Towards A Legal Framework To Tackle Fake News. [online] Livelaw.in. Available at: <https://www.livelaw.in/lawschool/articles/towards-a-legal-framework-to-tackle-fake-news-155556&gt; [Accessed 14 May 2020].

Kevin Davis from National University of Advanced Legal Studies, Kochi

editor: vatsala sood

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