"COMBATING FAKE NEWS IN THE WORLDS LARGEST DEMOCRACY: A CRITICAL ANALYSIS FOR THE NEED OF ANTI-FAKE NEWS LEGISLATION IN INDIA" BY - DEBMALYA SINHA
"COMBATING
FAKE NEWS IN THE WORLD'S LARGEST DEMOCRACY: A CRITICAL ANALYSIS FOR THE NEED OF
ANTI-FAKE NEWS LEGISLATION IN INDIA"
AUTHORED BY - DEBMALYA SINHA[1]
This article aims to explore the
legislative gap in curbing fake news circulation in social media in India. This
article also explores the concept of misinformation, disinformation and fake
news in detail and subtle differences between them in real world scenarios. The
spread of misinformation, disinformation and fake news in digital form via
social media though it is not a new concept, in this day and age countries
across the globe are struggling to put together a proper legislation to curb
and stop the spread of misinformation via social media. In the early 1890s we
find the first proper definition of fake news which clearly indicates the
intentional spread of false information either to harm a person's reputation or
for financial or personal gains. This article used a doctrinal research
approach and secondary data review research methods. The transition from print
media to digital media caused a surge in spread of fake news. Lack of
accountability, fast and free internet in the 4G & 5G age and the Covid 19
pandemic also encouraged the spread of viral fake news across the country and
the globe. The continuous surge of fake news remains a pertinent problem as we
face an upcoming A. I. revolution, in the world of deep fakes and artificial
intelligence the need to curb and stop the spread of fake news, misinformation
and disinformation has increased by many folds.
Keywords:
1.
Fake News
2.
Misinformation
3.
Disinformation
4.
Social Media
5.
Digital Media Platforms
6.
Legislation on Fake News in Social Media
Introduction
“The sole aim of journalism should be
service. The newspaper press is a great power; but just as unchained torrents
of water submerges the whole country side and devastated crops, even so an
uncontrolled pen serves but to destroy. If the control is from without, it
proves more poisonous than want of control. It can be profitable only when
exercised from within.”
Mahatma Gandhi[2]
The concept of fake news globally
emerged as an unruly concept in the early 19th century. Many eminent
scholars have defined “Fake News” and has given us a way forward. The
global connectivity in the Digital Era have brought the citizens of world
closer to each other digitally. In India we witnessed the effects of fake news
during the last Covid 19 pandemic, an infodemic was caused artificially which
adversely affected lives of common people drastically. This led to the open
discussion on the role of legislatures in Indian Parliament in curbing the
ongoing infodemic.
Fake news basically means False or
untrue information published, distributed and circulated via print media,
social media and broadcasting media with the sole aim to earn revenue by
advertising and harming or damaging a person's reputation and entity.
The essential ingredients of Fake
News are:
1. Small News events or petty news presented
in an exaggerated way
2. Scandal mongering
3. Sensationalism or fabrication of news
which does not exist in reality
Article 19
and Freedom of Press
Since the British Rule Indian press
has been subjected to heavy censorship and also many laws and regulations. If
you look at the long list of legislations drafted by the then British
legislators, we will find the Indian press act 1910, Indian press emergency act
1931-32 etc. During the Second World War the Britishers subjected the Indian
press to heavy censorship under the Defence of India Act. These censorship and
regulations on the Indian press were used by the Britishers to control and rule
India.
At the stroke of our country's
independence, the freedom of Indian press broke out from its shackles of
regulations and censorships. Prime Minister Jawaharlal Nehru said "I would
rather have a completely free press with all the dangers involved in the wrong
use of that freedom than suppressed and regulated press". The framers of
our constitution also had the idea of free press. According to them freedom of
press is an indispensable part of an operating democratic system. To many
people's surprise freedom of press was not specifically enlisted in the
fundamental rights. Dr BR Ambedkar the chief architect of the Indian
constitution assured the members of the constituent assembly that the freedom
of press is included within the ambit of freedom of speech and expression under
Article 19 of the Indian Constitution and it was hardly necessary for providing
it specifically.
Supreme Court in its series of
judgements since 1950's has been justifying its view that freedom of press is
included within the ambit of freedom of speech and expression under Article 19
of the Indian Constitution. According to the Supreme court of India the freedom
of press is regarded as a species and the freedom of expression is its genus.
Article 19 is considered to be the
backbone of Indian Constitution and fundamental rights which are guaranteed to
the citizens of India. In the Article 19 of the Indian Constitution two sets of
rights are provided, one set of rights are provided to the citizens of India
under Article 19(1) and under Article 19 (2) to 19(6) the other set of rights
are provided to the state to enforce regulations upon those rights guaranteed
under Article 19(1).
If we look at the landmark judgement
of Brij Bhushan v. State of Delhi[3],
we will find the observation of the honourable apex court were, the concept of
freedom of speech and expression in the Article 19 of the Indian Constitution
is mainly influenced from the 1st Amendment of the United States
Constitution[4] were the
heading contains Freedom of Speech or of the Press, here the constitutional
drafting committee absorbed all the essential features of the of the 1st
Amendment of the United States Constitution[5]
including the concept of free press into freedom of speech and expression
guaranteed under Article 19 of the Indian Constitution.
In Sakal Papers v. Union of India[6]
the honourable apex court held that in accordance to Dr B.R. Ambedkar the right
of free press is contained within freedom of speech and expression, where
freedom of press is a species and the freedom of speech and expression is the
genre and thus the need for a special or separate article is absent in context of
the Indian Constitution.
In Article 19(2) to (6) itself
contains provisions for regulations of free press and such power is provided by
the Indian Constitution to the parliament or the legislature of India. Thus the
need for specific laws to regulate the creation of dissemination facts and
figures in the name of exercising free speech and expression can be statutory
controlled by the Government with a proper legislative approach.
No freedom can be absolute or
completely unrestricted. Article 19 (2) of the Indian Constitution the state
can impose reasonable restriction on the freedom of press for public interest
under the following grounds
1.
Sovereignty
and integrity of India
2.
Security
of the state
3.
Maintaining
public order
4.
Contempt
of court
5.
Decency
or morality etc.
Legislative
Gap
The need for legislation on Fake News
in India is eminent. A legislation which aims to address the solutions and gaps
in the current Indian society is the need of the hour. The study of the bills
on Fake News which were produced in front of the Indian Parliament gives us a
preview for the need of a statutory authority to curb and control false news or
mis information in the Indian society without violating any of the fundamental
rights guaranteed under the Indian constitution especially Article 19 of the
Indian Constitution.
On 26th June 2019, Bill
No. 138 of 2019[7] was introduced in Lok Sabha (House
of People) by Shrimati Rama Devi, Member of Parliament. The title of the
bill was “The Fake News Prohibition Bill, 2019”. The major aim and
objective of the abovementioned bill introduced by Shrimati Rama Devi, Member
of Parliament was to prohibit the distribution and creation of Fake News in
media. Here in this bill, media included both the print media and digital
media. This bill was a noble effort taken by the Legislative Pillar of our
country to forbid the creation and distribution of disseminating information
through media in various forms and mediums in the modern digital era. This bill
was made with the intention to check the early advent of an upcoming Infodemic
in India. The shifting of traditional news reporting in the form of print media
to social media platform in the age of fast and free internet services has
created a grey area of concern for the future of media in our country. The
distribution of fake news in country has led to many incidents of causing panic
amongst the Indian citizens, division, chaos, violence and incidents of mob
lynching.
As we are moving into the era of 5G
internet services India still has no specific legislation regarding Fake News
whereas other countries have made strides in both preventing the creation and
spread of false information in media through various legislation in their own
respective countries. Penalizing mass media enterprises and social media
platforms which fails, neglects and refuses to remove false news or false
information within a reasonable period of time after having the knowledge or
having reasonable ground to believe the falsity of the news or facts is also
required. This bill basically aims to encourage responsible and credible
journalism as well as creating the awareness regarding the harmful effects of
spreading Fake News or mis-information or dis-information in the modern Indian
society.
On 20th January 2023, Bill
No. 47 of 2023[8] was introduced in Lok Sabha (House
of People) by Shri Manoj Kotak, Member of Parliament. The title of the
bill was “The Prohibition of Fake News on Social Media, 2023”. The major
aim and objective of the abovementioned bill introduced by Shri Manoj Kotak,
Member of Parliament was to provide for the establishment of a Fake News Social
Media Regulatory Authority to prohibit circulation of fake news on social media
and for matters connected therewith. The concept of “word of mouth” in the modern
digital era was recognized by this bill. Social Media platforms such as
WhatsApp, Facebook, Twitter, LinkedIn etc was recognized as powerful tool for
expression and also circulation of Fake News in a much more free and fast mode
than previously dealt Print Media.
This bill introduced the concept of
social media regulatory authority for curbing of fake news in India, it also
provided a complete structure for the above-mentioned social media regulatory
authority.
It also recognizes the existing law
under the information technology intermediate guidelines and digital media code
amendment rules of 2022; however, the above-mentioned law did not contain any
provision to ban Fake News. So, it became important for India to legalise the
provision of Fake News on social media platforms and to implement the law at
the earliest possible opportunity to maintain and ensure topics on social media
platforms are in line with the Indian society, decency and culture.
Comparative
Legilative Study
The legal framework aiming to curb
fake news in UAE (United Arab Emirates) is a fine example of effective legal
application to curb and control disseminating information.
From 2016 onwards United Arab
Emirates have upgraded its law related to Cyber-crime which aid in the addition
of new penalties and brooding jurisdiction of laws relating to Cyber-crimes and
securities moving beyond the laws of defamation in the country. The laws in the
United Arab Emirates provided a regulatory control on identification and
generation of fake news and scanning of various other social media post for
false or misinformation. Any person in the United Arab Emirates if found
creating or distributing Fake News will be held guilty under the common law and
will be penalised with a fine of 250,000 Dirhams, along with imprisonment[9].
The nature of stringent laws which
were introduced in 2016 by the UAE was a result of a judgement given by United
Arab Emirates court. Where the court had found in a retrial of an alleged man
swearing online with his cell phone using WhatsApp. The judgement of the above
mention trial resulted in the court penalising the alleged man with a fine of
3000 Dirhams. This decision by the UAE courts was considered as a corner stone
for anti-fate news laws in UAE.
The present Federal law in the UAE
penalises the offenders of social media uses for proven offences of creating
and spreading of fake news on mis-information along with the content and
rumours that are meant to be detrimental for the reputation of the UAE or the
Institutions of state.
The Government of UAE all is also
very vocal about the approaches of social media network in the point of view of
the UAE government the social media networks are not doing enough to stop or to
curb the provocation and slander put in by the uses of social media. The
criminal content which is needed to be eliminated by the social media networks
are not being acted upon readily. The telecommunication experts present in the
UAE are continuously monitoring every post and deleting fake news messages on
WhatsApp and on other social media networks but this is a daunting task to
carry out in application and working terms which is creating a permanent
mechanism of censorship[10].
If we look at the United Kingdom
there are existing laws to deal with fake news and spreading of defamatory materials
under the Defamation Act of 2013[11]
which address is both slander and libel. The Communications Act of 2003[12]
in the United Kingdom has also been effective to punish provocative, obscene or
delegatory content circulated and distributed in the social media platforms
which causes harm to any individual or organisation but it lacks the specific
soft touch regarding fake news.
To provide better or optimal data
protection service to the uses of social media platform the Data Protection Act
of 2018 is being used by the United Kingdom authorities. The Data Protection
Act of 2018 of United Kingdom keeps a constant and close eye for tracing fake
news which are generated on social media platform it is very fear that these
laws of United Kingdom are somewhat enough to identify and combat fake news on
social media but they are not stopping the generation and distribution of news
throughout the social media platform in the United Kingdom completely.
In a recent study conducted by
different researchers of Indian laws an observation came into the light, Indian
cyber laws do not contain any direct provisions to govern the rumours which are
circulated in the social media platforms across the country. The Indian
Information Technology Act of 2000 provides for limited liabilities on the
intermediates such as search engines for providing a digital blockade and
filter to all the objectionable content, for example Google Search Engine. This
is done while exempting the intermediaries from any kind of liability for any
third-party content which is violative the Indian society under the Information
Technology Act of 2000. Under section 79 of the information technology act of
2000 imposes an obligation upon the third party should remove any such
violative content from their respective platforms within a reasonable time
period. The lack of media regulatory authority in the Indian laws is eminently
visible as compared to other countries Indian Legislation has a long way to
catch up.
Existing
Machineries to curb Fake News
The Press Council of India, News
Broadcasters Association (NBA), Indian Broadcast Foundation (IBF) and
Broadcasting Content Complaint Council (BCCC) are existing bodies which are
used to control and curb the distribution and creation of fake news through all
forms of media in India.
If we look at statutory provision
already existing in India, then the Indian Penal Code 1860 contains few
provisions which could be used to control and curb fake news under Section
153 of the Act which states whoever malignantly, or wantonly by doing
anything which is illegal, gives provocation to any person intending or knowing
it to be likely that such provocation will cause the offence of rioting to be
committed, shall, if the offence of rioting be committed in consequence of such
provocation, be punished with imprisonment of either description for a term
which may extend to one year, or with fine, or with both; and if the offence of
rioting be not committed, with imprisonment of either description for a term
which may extend to six months, or with fine, or with both[13].
Section 295 of the Indian Penal Code
1860 states Injuring
or defiling place of worship, with intent to insult the religion of any
class.-- Whoever destroys, damages or defiles any place of worship, or any
object held sacred by any class of persons with the intention of thereby
insulting the religion of any class of persons or with the knowledge that any
class of persons is likely to consider such destruction, damage or defilement
as an insult to their religion, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with
both[14].
Section 499 and Section 500 of the Indian Penal Code of 1860
talks about defamation in India both slander and libel are punishable offence
Section 66 of The Information Technology Act of
2000 Computer related offences which states if any person, dishonestly or
fraudulently, does any act referred to in section 43, he shall be punishable
with imprisonment for a term which may extend to three years or with fine which
may extend to five lakh rupees or with both.
Explanation. For the purposes of this
section,
(a) the word "dishonestly"
shall have the meaning assigned to it in section 24 of the Indian Penal Code
(45 of 1860);
(b) the word "fraudulently"
shall have the meaning assigned to it in section 25 of the Indian Penal Code
(45 of 1860).]
Though there are various
quasi-judicial bodies and existing statutes which are present in the Indian
legal system the need for a specific statute to control the distribution of
Fake News in the Indian society is absent.
Conclusion
and Suggestions
“Satyamev Jayate” the truth alone
shall triumph, this
noble and conscious thought is engraved into our Indian constitution. The role
of media is to actively inform people about the governance policies that the
has been taken by the government. India being the largest democracy in the
world and its government being an elected one by the people, thus citizens
acquire the right to know about the various policies which are been implemented
by their elected government.
The major takeaways from the above
discussion regarding fake news legislation are summarize below:
1. There is a dire need for a specific
statue which is drafted and enacted to serve the sole purpose of curbing the creation
and distribution of disseminating information digitally or via print media
throughout India. An establishment of statutory authority by using such statue,
the members of such statutory authority should comprise of experts from all the
existing quasi-judicial bodies used to curb fake news,
2. A public private collaboration is
required as we are standing at the edge of A.I. revolution without proper
digital infrastructure it will be challenging to curb the creation of Fake News
in the digital playground,
3. Speedy disposal of disseminating
facts and mis-information already in circulation throughout the web or print
media should the priority of the statutory authority if so established by law.
The menace of fake news in social
media is on the rise, in today’s world it cannot be regulated simply by one
authority or simply by a government. It can only be regulated when citizens
become more aware of their surrounding circumstances and verify each news
before believing on it. Thus, taking into account the motto our constitutional
framers vested in our Indian constitution of the people, by the people, for the
people, media has an important duty to play in this. As a weak press makes a
democratic society weaker where as a strong press makes a democratic society
stronger.
[1] Assistant Professor of Law,
Kingston Law College affiliated under West Bengal State University, Barasat,
Kolkata, West Bengal
[2] https://www.newslaundry.com/2019/10/02/meet-mahatma-gandhi-the-journalist-when-a-newspaper-is-a-means-of-making-profit-serious-malpractices-are-likely(last
visited on June 20th, 2024)
[3] 1950 AIR 129, 1950 SCR 605, AIR
1950 SUPREME COURT 129, 1963 MADLW 934
[5] Ibid.
[6] 1962 AIR 305, 1962 SCR (3) 842,
AIR 1962 SUPREME COURT 305
[7]https://sansad.in/getFile/BillsTexts/LSBillTexts/Asintroduced/998LS%20As%20Int....pdf%20fake%20news.pdf?source=legislation(last
visited on June 22nd, 2024)
[8]https://sansad.in/getFile/BillsTexts/LSBillTexts/Asintroduced/47%20OF%202023%20AS%20INTRO84202372634PM.pdf?source=legislation (last visited on June 22nd,
2024)
[9]Dr. Robin Kabha, Dr. Ahmad Kamel,
Dr. Moataz Elbahi, Dr. Sumit Narula, ‘Comparison Study between the UAE, the UK,
and India in Dealing with WhatsApp Fake News’ 10 Year 5 JCCCASC (ISSN:
2395-7514) (2019)
[10] Ibid.
[11] Defamation Act of 2013 of United
Kingdom
[12] Communication Act of 2003 of
United Kingdom
[13]https://www.indiacode.nic.in/showdata?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=163#:~:text=Whoever%20malignantly%2C%20or%20wantonly%20by,such%20provocation%2C%20be%20punished%20with
[14]https://www.indiacode.nic.in/showdata?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=330#:~:text=%2D%2D%20Whoever%20destroys%2C%20damages%20or,as%20an%20insult%20to%20their