Legal implications of fake news in India & the way forward

The world in general and India in particular in recent past has witnessed phenomenal increase in penetration of smart phones and the rise of social media platforms like Facebook, Whatsapp, Twitter, Instagram etc. This has simultaneously given rise to increasing influence of Fake News.

Recently (in third week of May 2020), PIL has been filed before the Hon’ble Supreme Court seeking direction to the Government commanding them to make mechanism to check content and advertisements which are spreading hatred among communities, seditious, instigative, separatist, hate-filled divisive, against the society at large and against the spirit of Union of India. The Petitioner states in the PIL that there are hundreds of fake Twitter handles and bogus Facebook accounts in the name of eminent people and high dignitaries. These fake Twitter handles and Facebook accounts use real photo of constitutional authorities and eminent citizens which makes the common man to believe to their fake propaganda.

Dr Tedros Adhanom Ghebreyesus, Director General, World Health Organisation (WHO) stated on February 15, 2020 at Munich Security Conference, “We’re not just fighting an epidemic; we’re fighting an infodemic. Fake news spreads faster and more easily than this virus, and is just as dangerous.”

The above comments of Dr Tedros came in the contest of Covid-19, however the menace of Fake News is being witnesses in India much before the outbreak of Covid-19. Whether it be the misinformation related to Citizen Amendment Act, Election Campaigns and more recently Covid-19, Fake News is being increasingly used as a tool by some with vested interests to achieve their ulterior motives. In this context it is relevant to examine the existing Legal framework in India to deal with Fake News and the way forward.

LEGAL IMPLICATIONS OF FAKE NEWS

India does not have any specific legislation which defines and deals with the issue of ‘Fake News’. However, depending on the nature of Fake News, jurisdictions of different legislations have been invoked to deal with the menace of Fake News.

Indian Penal Code, 1860

The closest provisions in Indian Penal Code (‘IPC’) in relation to Fake News are the provisions which largely deal with hate speech and incitement. These provisions, though not tailor made for curbing fake news, can be used to punish the offenders of fake news as well in appropriate cases.

S.153(A) of IPC provides for punishment for the offenses related to promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony with upto three years imprisonment or fine or both. S.153B makes punishable publishing imputations, assertions prejudicial to national integration.

Section 295A deals with actions that are intended to outrage religious feelings of any class by insulting its religion or religious beliefs, punishable with upto three year imprisonment or fine or both.

S.505(1)(b) of IPC provides whoever by making, publishing or circulating any statement, rumour or report which may cause fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against public tranquility shall be punished with imprisonment which may extend to three years, or with fine, or with both. S.505(1)(c) provides similar punishment for circulating a rumour intended to incite any class or community to commit any offence against any other class or community.

It may however be said IPC was enacted in the year 1860 when issues like dangers of fake news spreading like wild fire on social media did not exist. Accordingly, above provisions concerning hate speech or incitement in IPC do not adequately cover the much wider and complex issue of fake news. Therefore, using the provisions of IPC against the fake news is like forced choice in the absence of specific legislation on the issue of fake news.   

Disaster Management Act, 2005

Section 54 of the Disaster Management Act, 2005 (“DM Act”) provides whoever makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic shall be punish with the Imprisonment which may extend to one year or with fine. It is this provision of law which is being mostly being used to take actions against spreading of fake news at the time of Covid-19.

Further, Section 22 of the DM Act gives responsibility of implementing National (Disaster Management) Plan and State Plan to State Executive Committee. S. 22 empowers the State Executive Committee to give directions to any Department of the Government of the State or any other authority in the State regarding actions to be taken in response to any threatening disaster situation or disaster. Delhi Disaster Management Authority vide its Notification dated 01.04.2020 under S. 22 of Disaster Management Act issued direction to Directorate of Information & Publicity to issue necessary instructions and regularly monitor developments across various media so as to ensure that unverified news capable of causing panic is not disseminated. This notification was issued in the wake of Order dated 31.3.2020 by the Hon’ble Supreme[i] in which Hon’ble Supreme Court noted that fake news led to large scale migration of people (lockdown). The Apex Court observed that it not possible for us to overlook this menace of fake news either by electronic, print or social media. Apex Court made it clear that it expect the Media (print, electronic or social) to maintain a strong sense of responsibility and ensure that unverified news capable of causing panic is not disseminated.  In that Order the Hon’ble Supreme Court recorded that a daily bulletin by the Government of India through all media avenues including social media and forums to clear the doubts of people would be made active within a period of 24 hours as submitted by the Solicitor General of India.

It may be noted that the provisions to curb fake news under Disaster Management Act is limited to circulating false alarm related to disaster creating panic. However, even during the times of Covid-19 fake news may not necessarily to related to false alarm related to disaster creating panic. The maximum punishment is also just one year. Hence, the provisions are clearly inadequate.

Information Technology, 2000

Under the Information Technology, 2000 (“IT Act”), social media platforms are identified as ‘intermediaries’ under Section 2(w) of the Information Technology Act, 2000 (“IT Act 2000”). Under S. 69 A of the IT Act, Central Government can direct an intermediary to block for public access any information generated, transmitted, received, stored or hosted in any computer resource in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above.Section 79 (1) of the IT Act exempts intermediaries from liability in certain instances and states that they will not be liable for any third party information, data or communication link made available or hosted by them. Section 79 (3) of the IT Act however curls two exception S. 79 (1) for which intermediaries shall be liable i.e. (a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act; (b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.

Section 66D of IT Act provides whoever, by means for any communication device or computer resource cheats by personating shall be punish with the imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to one lakh rupees.

Information Technology (Intermediaries Guidelines) Rules, 2011

The Information Technology (Intermediaries Guidelines) Rules, 2011 (“Rules”) requires the Intermediaries to observe due diligence and to remove unlawful content upon receiving actual knowledge. Section 79 of the Act empowers the government to prescribe due diligence standards to intermediaries. The Rules require each intermediary to publish terms of use. These terms of service are required to prohibit the user from hosting content of certain specified nature, including content that is grossly harmful, harassing, blasphemous, defamatory, obscene, hateful, racially or ethnically objectionable, unlawful in any manner, etc. Once the intermediary has the knowledge (either obtained on its own, or when it is informed by any person) that the content being hosted by the intermediary violates the Rules, it is required to initiate action for removal of such content within 36 hours. The intermediary may also terminate the access of the users. Ministry of Electronics and Information Technology (“MEIT”) issued advisory on 20.03.2020 to curb false news/misinformation on Covid-19.

ISSUE OF JURISDICTION

The servers or the computer resource of the Intermediaries hosting the objectionable content may not be located within India and Intermediary may not have physical presence in India. In such situation the question of jurisdiction to hold such Intermediary accountable arises. The draft Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018 [ii] (“Draft Intermediary Guidelines, 2018”) seek to rectify such issues by providing that in Rule 3(7) that the Intermediary who has more than fifty lakh users in India or is in the list of intermediaries specifically notified by the government of India shall: (i) be a company incorporated under the Companies Act, 1956 or the Companies Act, 2013; (ii) have a permanent registered office in India with physical address; and (iii) Appoint in India, a nodal person of contact and alternate senior designated functionary, for 24x7 coordination with law enforcement agencies and officers to ensure compliance to their orders/requisitions made in accordance with provisions of law or rules. This is a welcome step to make the intermediaries accountable to Indian Laws.

ISSUE WHETHER INTERMEDIARY BE ALLOWED TO JUDGE THE LEGALITY OF CONTENT ON SOCIAL MEDIA

The implementation of new draft Intermediary Guidelines, 2018 has been considerably delayed. One of the contentious issue is whether Intermediary be allowed to judge the legality of content on its platform. The draft Intermediary Guidelines, 2018, in current form envisage removal of content by Intermediary within 24 hours of Govt. or Court Order, however, it also gives independence to the Intermediary to remove content on its own. This can have two negative implications especially because there is vide scope of interpretation of what content can be categorised as harmful, disparaging or otherwise unlawful as mentioned in Rule 3(2) of the draft Intermediary Guidelines, 2018. Firstly, it amounts to giving control on the content of social media in India to foreign entities which may be guided as per the national interest of their respective countries rather than Indian national interest. Secondly, an Intermediary may block more content than required in order to minimize the risk of liability which can adversely impact freedom of expression on the internet. It has been well established that Government choosen by the people and Courts of Law are much better suited than Intermediaries to judge illegality of content. The draft Intermediary Guidelines, 2018 should take care of this vital aspect.

There is a proposed alliance to be named the Information Trust Alliance (ITA) which will be a grouping of digital platforms and publishers, fact checkers, civil society and academia that will aim to control the spread of harmful content, including fake news and hate speech.[iii] While such grouping is welcome step however it is vital that any such grouping should work under the supervision of the Government and should be accountable to the Government for its actions.

REASONABLE RESTRICTIONS ON FREEDOM OF SPEECH & EXPRESSION

The issue of Fake News hinges upon creating right kind of balance between Article 19(1)(a) of the Constitution which gives fundamental right freedom of speech & expression and Article 19(2) which allows State to make any law imposing reasonable restrictions on the right to freedom of speech & expression in the interest of sovereignty & integrity of India, security of state, friendly relations with Foreign states, public order, decency and morality or in relation to contempt of court, defamation or incitement to an offence (approx. eight items). The Hon’ble Supreme Court vide its decision in Shreya Singhal v Union of India[iv] has struck down the constitutional validity of S. 66A of the IT Act which provided for punishment to person who by means of computer resource or communication device sends (a) any information that is grossly offensive or has menacing character, or (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device, or (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages.

S. 66A of the IT Act was struck down by the Hon’ble Supreme Court on the ground that it infringes on freedom of speech & expression given by Article 19(1)(a) and is not saved by Article 19 (2) of the Constitution.

The Hon’ble Supreme Court in S. Khushboo vs Kanniamal and Anr.[v] stated in para 45 that importance of freedom of speech and expression though not absolute was necessary as we need to tolerate unpopular views. This right requires free flow of opinions and ideas essential to sustain the collective life of citizenry. The Hon’ble Supreme Court in Shreya Singhal (supra) opined that S. Khushboo judgment is important as it refers to the “market place of ideas” concept that has permeated American Law.  

The Hon’ble Supreme Court in Shreya Singhal (supra) observed that the three concepts fundamental in understanding the reach of freedom of speech & expression are - discussion, advocacy and incitement. Mere discussion or even advocacy of a particular cause however 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.

The Hon’ble Supreme Court recently in Foundation for Media Professionals and Ors. vs. Union Territory of Jammu and Kashmir and Ors. [Writ Petition (Civil) ... of 2020 (D. No. 10817 of 2020), Writ Petition (Civil)... of 2020 (D. No. 10875 of 2020) and Writ Petition (Civil)... of 2020 (D. No. 10904 of 2020)] in its Order dated 11.05.2020, in relation to curb on internet service on mobile devices in Kashmir, reiterated that fundamental rights of citizens need to be balanced with national security concerns, when the situation so demands. In the said Order the Hon’ble Supreme Court constituted a special committee to determine the necessity of the continuation of the restrictions in the Union Territory of Jammu and Kashmir.

THE WAY FORWARD

The current legal provisions are not adequate to deal with the menace of Fake News in India. New Legislation needs to be enacted dealing exclusively with the issue of Fake News. A comprehensive law on the subject will also minimize the need of internet shutdown in order to curb fake news which cost very dearly to the economy. However, while the act of deliberately publishing and transmitting Fake News need to made more stringent and penal, at the same time it should not take away the liberty of the people to freely share their knowledge in good faith. It is therefore vital for the effectiveness of such legislation that before imposing punishment on any individual, the mens rea (intention) of the person creating/sharing such information should be seen.

Intermediaries should not be allowed to judge the legality of content on its platform especially because there is vide scope of interpretation of what content can be categorised as harmful, disparaging or otherwise unlawful. Therefore, under such proposed enactment (dealing exclusively with the issue of fake news) an online portal need to be created to be controlled by Government or an independent Agency created by that statue, wherein such videos/ messages/information which is found to be fake, need to be highlighted as fake in such a manner that anyone can easily search the same on that portal. This will caution both the Intermediaries to delete such content from their platforms and the people in general not to transmit such information further. Liability can be fixed if any media house continues to publish or any individual continues to share such information which has been listed on that portal as fake even after a particular duration of its listing. To make the process of identification of fake news easier, option should be given to individuals to report fake news to the authority set up under such enactment, which can verify the same and if found fake, the same can list on the said portal so that everyone can see. To safeguard the liberty of the people, the authority under such enactment should thoroughly verify the authenticity of such information before listing them as fake on its portal.

It is often said that law need to keep pace with the requirements of changing times and today a comprehensive legislation to tackle the issue of fake news, is the need of the hour. Success of such legislation depends on balancing the same with freedom of speech & expression.