FAKE NEWS: LEGAL ANALYSIS OF FALSE AND MISLEADING NEWS AND CYBER PROPAGANDA (by- Dr. S. Krishnan & Ms. Rashmi Rana)
FAKE NEWS: LEGAL ANALYSIS
OF FALSE AND MISLEADING NEWS AND CYBER PROPAGANDA
Authored by- Dr. S. Krishnan
Associate
Professor
&
Ms. Rashmi Rana
1st year Student of LLB (3)
Seedling
School of Law And Governance
Jaipur
National University
Abstract
Today ‘Fake News’ has become a menace in the society and which is difficult
to deal with as it may come in
conflict with the right to freedom of speech and expression. Because of losing
trust in mainstream media and the availability
of choice of media to receive news, most of the readers have shifted to social
media. It is very easy to create fake
news and as consumers are not aware so often they fail to differentiate between
fake news and news that is real. This
article aims to discuss the role of fake news in spreading violence; cyber
propaganda; role of Facebook as a
social media platform in spreading false news; and the legal position in different
countries like France, UK, Egypt and India.
\
Keywords: Fake News,
Propaganda, Social Media, disinformation.
Introduction
The menace
of Fake news has gained much attention during the recent time. “Fake news” is a
term that may have different
meaning in different
context. Fake news or junk news can also be called
propaganda and intentional wrong with misleading information or hoaxes.
Generally, it is an intentional item to mislead public about anything in order to increase viewership or
readership. Sensationalist, dishonest, or totally fabricated headlines are used
either about entity, or person or community
etc., in order to gain financially or politically.
Whenever Fake
news is discussed then two terms i.e. „disinformation? and „misinformation? are
often combined. But UNESCO published
a new edition from their series “Handbook for Journalism Education and Training”
where these two terms were defined differently. According to UNESCO, “disinformation is generally used to refer to deliberate attempts to
confuse or manipulate people through delivering dishonest information to them. This is often combined with parallel and intersecting communications
strategies and a suite of other tactics like
hacking or compromising of persons. Misinformation
is generally used to refer to misleading information created or disseminated without manipulative or malicious intent.”1
The sources
of fake news may be through print or electronic news media or through social
media.2 When Fake news
finds its ways in mainstream media then this type of news can be very hard to
correct and may have long lasting
effects even after it is discredited. The Internet has grown to heights, and
its boundaries are unlimited as well as
unimaginable it is loaded with tons of information or misinformation, which can
be made by anyone. The content which
is fabricated, and headings which are misleading, and false context convinced
millions of internet users worldwide. Sometimes, the Fake news publishers earn revenue by collaborating with companies like Google AdSense, Media.net and marketing affiliate
programs like Amazon Associates which put advertisements on their Web pages.
According to
survey conducted by Pew Research Center in 2016 it was found that most
Americans suspect that fake news is
having an impact. And even some Americans said they themselves shared fake
news. Nearly 1/3 adults (32%) said
they often see fake political news online, while 39% sometimes saw such stories
and 26% hardly ever or never done that.3
The freedom
to inform also suffers as journalists are expected to work fairly and
fearlessly. But, it becomes difficult
for them to do so when they get threatened and insulted on social networks. The
Council of Europe published a survey in April 2017, relating to harassment against journalists which was conducted
in its 47 member
* Associate Professor,
Seedling School of Law and Governance, Jaipur National University,
Jaipur.
?? 1st year student of LLB (3), Seedling School of Law and
Governance, Jaipur National University, Jaipur
1 Handbook on „Journalism, „Fake News? & Disinformation?; UNESCO. 2018, available at
2 Tufekci,
Zeynep (January 16, 2018). "It's the (Democracy-Poisoning)
Golden Age of Free Speech", available at https://www.wired.com/story/free-speech-issue-tech-turmoil-new-censorship/
3 Michael Barthel,
Amy Mitchell And Jesse Holcomb, Many Americans
Believe Fake News Is Sowing Confusion, 23% say they have
shared a made-up news story – either knowingly or not, available at https://www.journalism.org/2016/12/15/many- americans-believe-fake-news-is-sowing-confusion/
countries. Out of
the 940 journalists polled, 40% of them said they had been subjected to forms
of harassment that had “affected
their personal life” in the previous
3 years. Out of these
cases, 53% consisted of cyber harassment.1
Political
actors have created a system of misinformation and propaganda war room and have
utilized this digital opportunity to
put anything as news and to weaken any information that is against their
political agenda by calling it as
Fake News. This system of fake news factories controlled by political actors
has not been studied in depth. There
is a basic difference between what is actually fake news and for what purpose
the term of fake news is used for.
First is fake news genre, where
deliberate creation of misinformation takes place, and the latter is fake news
label, where the term is used to delegitimize news media.
Misuse Of Information Technology In Indian Politics
Political
parties are exploiting digital technology and social media platforms to spread
fake news and undermine trust in the
media, public institutions, and science. It is being done to manipulate public
opinion to bring them in their favor.
At a time when news consumption is increasingly digital,
artificial intelligence, big data analytics, and “black-box” algorithms are being leveraged to challenge truth
and trust: the cornerstones of our democratic society.2 According to a survey done by Microsoft,
India3 topped fake news menace globally. The report showed out of
the total Indians surveyed, 64 percent have encountered
fake news as against the global average
which was 57 per cent.
Major political
parties in India have established separate cyber cell and information technology departments.
They work in a very systematic way to create social networking profiles and
disseminate information, disinformation
and propaganda news to their supporters. Thousands of pages over Facebook and
Twitter profiles with several
thousand Whatsapp groups all comprising millions of users and members are being
created by various political parties
to influence voters and the public in general. Recently, low-cost internet data
helped increase online news websites, You Tube channels, Facebook pages and Whatsapp groups.
A large number of Indians are unaware of system of Fake
News factories which utilizes this large number to push their agenda. This mega online system is encouraging
trollers to create man dominant web space where it is easy to harass women on social networking sites. Known
journalists, activists and politicians are victims of fake news and
online harassment.
Role Of Fake News In Spreading
Violence
Thousands of
fake viral message, photoshop pictures reaches to crores of people daily on one
or another issue supporting one party
or targeting another party or community. It has torn the social fabric of the
country and has presented a very
nasty picture of the political system. Investigations in numerous incidents of
violence and mob lynching against
Tribals, Dalits, Minorities other the weaker sections have established fake
news spread mostly through WhatsApp
groups. The hate created against weaker section of the society by these
organized factories of producing fake messages has resulted in lynching and killing of many people
around the country.
Billions of
Indians use WhatsApp and Facebook and
other social media networks but the same social media may turn anti-social at the hands of rumor mongers leading
to lynching.4 In 2018, during May and June at least 22 people have been killed by mobs on the suspicion of
being child-lifters or involved in cow slaughter in different parts of the country
and the police blamed fake news for these lynching.5
According to an
investigation by Indian Express after interviewing senior police officials it was reported that from mid of 2017 to July 2018 various whatsApp viral
messages led to the killing of 27 people in 15 cases of lynchings by uncontrolled mobs blinded by viral rumours of
child-kidnappers across nine states from Assam to Tamil Nadu.6
Infamous fake news factory i.e Postcard
News continues to post with impunity. Though, in 2017, Alt News, which is Fake news buster website, had
chronicled numerous instances of fake news posted on this website. It never was punished for creating fake news and for spreading
misinformation.1 Danik Jagran,
popular Hindi daily published
false news, still on its website,2 that victim girl was not raped,
though several fake news buster websites such as The Wire, News Click exposed Jagran.3,4
When
Padmaavat movie related protests were happening in 2017 and the Karni Sena was
out on the roads (because they
claimed that the Hindu princess Padmavati?s story was being distorted in the
movie), a school bus was attacked in Gurgaon (a city in Haryana). Suddenly
a message went viral to show
five Muslims were involved.5
In India,
since 2015 lynching has become a major problem. It became prominent especially
when a Muslim villager named Akhlaq,
a resident of Uttar Pradesh was killed by
a mob after rumors spread that he was storing beef in his freezer. In this case the accusation was spread by a loudspeaker from a
nearby temple. Mohammad Ali, an Indian
journalist, said that “crime and the killings of the past months had a common
thread, linked to rising nationalist sentiment
in the country”.6
According to a
Reuters report, in India, a total of 63 cow vigilante attacks had occurred
between 2010 and 2017. In that period
also it occurred mostly since the NDA government came to power in 2014. In
these attacks, 28 Indians were killed
and 124 were injured. Out of the 28 killed,
24 of them were Muslims.7 Majority of these incidents are directly supported by online fake news messages and indirectly by hatred created through these messages.
1 Online Harassment Of Journalists Attack
of the trolls Reporters
Without Borders (RSF);
available at https://rsf.org/sites/default/files/rsf_report_on_online_harassment.pdf
2 Samantha Bradshaw & Philip N. Howard, “Challenging Truth and Trust:
A Global Inventory
of Organized Social Media Manipulation.” Working Paper 2018.1.
Oxford, UK: Project on Computational Propaganda. comprop.oii.ox.ac.uk. 26 pp. available
at https://comprop.oii.ox.ac.uk/research/cybertroops2018/
3 India topping fake news menace globally: Microsoft
survey; available at https://www.bgr.in/news/india-topping-fake-news- menace-globally-microsoft-survey-770984/
4 Malik, Dr. M. Asad , Government, Governance, Lynching And Rule of Law, 5 July 2017 published at Live Law online Journal
of Law; available at https://www.livelaw.in/government-governance-lynching-rule-law/
5 Dutta,
Prabhash K, „16 lynchings in 2 months. Is social media the new serial killer??;
available at https://www.indiatoday.in/india/story/16-lynchings-in-2-months-is-social-media-the-new-serial-killer-1275182 updated on 02, July, 2018
6 Rashmi Rajput et al, Murderous mob-9 states, 27 killings, one year: And a pattern to
the lynchings; available at https://indianexpress.com/article/india/murderous-mob-lynching-incidents-in-india-dhule-whatsapp-rumour-5247741/
Role Of Facebook
Human
rights groups and researchers have cautioned Facebook that it is being used to
spread half-truth and promote hate
about Muslims, particularly the Rohingya, since 2013. In April, the Guardian
reported that hate speech through
Facebook in Myanmar had bursted during the Rohingya crisis, which was caused by
a crackdown by the military in Rahkine state in August, 2017. Several thousands of Rohingya Muslims were massacred, sexually
exploited and assaulted, houses and vllages were leveled to the ground
and more than 700,000 Rohingya escaped over the border to Bangladesh.8
As the users of
Facebook touched to 18 million, so too did hate speech, but it reacted very slowly and earlier in 2018 found its platform accused
by a UN investigator of fuelling anti-Muslim violence.9 In mid-2014, after rumours online about a Muslim man raping a Buddhist woman
started lethal riots in the city of Mandalay, the Myanmar government requested a crisis meeting with Facebook. It
said that government should send an email when
they saw examples
of dangerous false news and the company
would review them.10The report by
San Francisco-based nonprofit Business
for Social Responsibility (BSR) found that, in Myanmar, “Facebook
has become a means for those seeking to spread hate and cause harm, and posts
have been linked to offline violence.”1
This trend has led to create more fake
pages on Facebook just as Info wars is a fake news page over Facebook. Facebook not just allow Infowars
but it earns profit from the it and its audience. Facebook?s advertising tools, allow advertisers to pay Facebook
to target the 743,220 users who “like” the InfoWars page.2These
types of pages are flourishing on Facebook in innumerous number and revenue
generation is continued.
What?s
happening on the Facebook platform raises doubts about its public relations
campaign where it claims to have removed 652 fake accounts and pages meant to influence
world politics. It also announced
removal of pages, groups and accounts linked
to Russia and Iran,
citing „coordinated inauthentic behavior?3
In 2016, Facebook and Google
faced sharp public criticism that fake news
on their sites may
have prejudiced the presidential
election?s result. Google also permanently barred approximately 200 AdSense
publishers for alleged violations of the updated AdSense
Program Policies, which regulate the
use of “misrepresentative content” on publisher Web sites.4
1 Fake News
website “PostCard News” strikes again!, available at The Times Headline https://www.timesheadline.com/opinion/fake-news-website-postcard-news-strikes-20897.html
2 Chauhan, Avadesh, Jammmu, Girl was not raped, 21
Apr 2018 available at https://www.jagran.com/news/national-kathua-case- reveals-that-the-girl-was-not-raped-17850643.html
3 Exposed: Dainik
Jagran Posts Fake Story on Kathua Murder-Rape Case, Peddles the Hindutva Cause
The story written by Advesh Chauhan from Jammu
claimed that the eight-year-old Bakarwal girl from Kathua was not raped, available
at https://www.newsclick.in/exposed-dainik-jagran-posts-fake-story-kathua-murder-rape-case-peddles-hindutva-cause 4Rahul Kotiyal, 22/ 04/ 2018, Dainik Jagran Fake news on Kathua rape case, http://thewirehindi.com/40786/dainik-jagan-fake- news-on-kathua-gangrape-murder-case/
6 Jason Burke, “Inside the Indian village where a mob
killed a man for eating beef”, 2 Dec 2017; available at https://www.theguardian.com/world/2015/oct/03/inside-bishari-indian-village-where-mob-killed-man-for-eating-beef 7 Tommy Wilkes, Roli Srivastava "Protests held across India after attacks
against Muslims"; available at
https://in.reuters.com/article/india-protests/protests-held-across-india-after-attacks-against-muslims-idINKBN19J2C3; updated on 28 June,
2017.
8Hannah
Ellis-Petersen, “Facebook admits failing over incitement to violence in
Myanmar; published on Tue 6 Nov 2018; available
at https://www.theguardian.com/technology/2018/nov/06/facebook-admits-it-has-not-done-enough-to-quell-hate-in- myanmar
9 Olivia Salon, Facebook's
failure in Myanmar is the work of a blundering toddler; available at https://www.theguardian.com/technology/2018/aug/16/facebook-myanmar-failure-blundering-toddler
Legal
Position In Different Countries
Several
countries like France, Germany, Malaysia, Singapore, Egypt, Russia and U.K have
started deliberations to frame Laws and rules to
check abuse of free speech
and to curb and control the menace of Fake News.
France
The France?s Parliament in 2018 passed a new law against fake news. It
has given power to Courts in France to order
the immediate removal of "fake news" which was published during
election periods. The same law allows to suspend
foreign television if they "deliberately disseminate false information
likely to affect the sincerity of the elections.”
This implies that France has the power to take on any foreign TV station
suspected of spreading “false news.5As penalty,
law provided for one year imprisonment and a fine. This law has
been criticized a lot.
United
Kingdom
The Office of Communications (OFCOM) in the UK controls broadcast media. The Independent Monitor for the Press (IMPRESS) and Independent Press
Standards Organisation (IPSO) which are UK Press watchdogs will regulate only those newspapers whether
traditional and online that sign up to their terms and conditions. The fact is that these are limited in number.6
Also neither IPSO nor IMPRESS have taken any significant as a regulatory
action. Therefore, a UK
parliamentary committee (the Culture, Media and Sport Committee) commenced an
enquiry into tackling the problem of
fake news. 7 The committee looked into various important questions
like „what is fake news?; „its impact
on public understanding?; „effect of sale and purchase of advertisements over
the growth of fake news? etc.
Further, the committee looked into the responsibility of social networks for
harmful and illegal content on their platforms.8
Egypt
In 2018 Egypt?s Parliament passed an anti-fake news law. Under the law,
the social media accounts and blogs which
will have more than 5,000 followers on sites such as Twitter and Facebook will
be treated as media outlets. It will make them subject
to prosecution if they will publish fake news. This law also regulates the establishment of
1 Facebook says human rights report shows it should
do more in Myanmar, Nov 6, 2018 https://www.deccanchronicle.com/technology/in-other-news/061118/facebook-says-human-rights-report-shows-it-should-do- more-in-myanmar.html
2Judd Legum,
“Facebook's pledge to eliminate misinformation is itself fake news”, published
on 20 Jul 2018; available at https://www.theguardian.com/commentisfree/2018/jul/20/facebook-pledge-to-eliminate-false-information-is-itself-fake-news 3 Ibid
4 Nick Wingfield, Mike Isaac and Katie Benner, “Google and Facebook take aim at Fake News site”; available at https://www.nytimes.com/2016/11/15/technology/google-will-ban-websites-that-host-fake-news-from-using-its-ad-service.html 5Michael-Ross
Fiorentino, ‘France passes controversial
'fake news law, published on 22 Nov 2018; available at https://www.euronews.com/2018/11/22/france-passes-controversial-fake-news-law
6 “Government
seeks to tackle the fake news” problem; available at https://www.nortonrosefulbright.com/en/knowledge/publications/4a0c020f/uk-government-seeks-to-tackle-the-fake-news- problem
7 Ibid
8 Jim Waterson, “Democracy at risk due to fake news and data misuse,
MPs conclude’’, published on 27 Jul 2018; available
at https://www.theguardian.com/technology/2018/jul/27/fake-news-inquiry-data-misuse-deomcracy-at-risk-mps-conclude
websites and it can be done only
after obtaining a license from the Supreme Council for the Administration of
the Media1, which allows
it to suspend or block existing websites,
or impose fines on editors.2
The Legal Position On Fake
News In India
There is no
specific law to deal with fake news in India. The Right to freedom of speech
and expression as laid down under
Article 19(1) (a) of the Constitution is the basic Law which supports
publication or broadcast of news
freely. But one should remember that the freedom under Article 19(1)(a) is not
absolute and is subject to reasonable restrictions under Article 19(2).
If there
are cases of fake news, the complaints can be filed with the:
ü News Broadcasters Association (NBA) which represents the private television news and current
affairs broadcasters.
ü Broadcasting Content
Complaint Council (BCCC).
A complaint relating
to objectionable TV content or fake news can be filed to the Broadcasting Content Complain Council.
ü The Indian Broadcast Foundation (IBF)
In April, 2018, the Information and
Broadcasting Ministry withdrew its earlier order on fake news. Under that order “if any journalist was found
guilty of disseminating fake news then his accreditation could be cancelled”.3 The government then said that the matters
relating to fake news should be dealt with in the ambit of the Press Council of India which is already an
established regulatory body. It is to be noted that under Section 14 of the
Press Council Act, 1978, the Press
Council has the power that “it can warn, admonish or censure the newspaper, the
news agency, the editor or the
journalist or disapprove the conduct of the editor or the journalist if it finds that a newspaper or a news agency has offended against the standards of
journalistic ethics or public taste or that an editor or a working
journalist has committed
any professional misconduct.”4
Government
is trying to give more power to authorities under section 79 (Exemption from
liability of intermediary in certain
cases) of the Information Technology Act, 2000. The first amendment
will make it compulsory
for online mediums to utilize technology which would enable finding 'unlawful'
content. But the second amendment is
more alarming as it requires breaking end-to-end encryption so that origin of
messages can be traced.5 Here
the important concern is this breaking of encryption can breach the privacy and
authorities may use genuine messages
and mails to intrude the privacy.
Various
Sections of Indian Penal Code like section 153, 153A, 295 and 295A can be
invoked to guard against fake news.
Seen from the prism of these sections, action can be initiated against someone
creating or spreading fake news if it
can be termed as hate speech. The
Defamation suit is another legal tool available in the case of fake news. If a person finds fake news defamatory s/he
can file a civil or criminal case6 for defamation. So, here also we can see that under IPC also there is no specific
provision which deals with all types of fake news.
Recommendations
The IT (Amendment) Act, 2008 is itself adequate
for monitoring and blocking internet
sites and services.
A positive approach regulates
viral messages and restricting the number of forwards can be
a great step. The masses must be educated about fake messages over the
internet. Messages and news items should be tracked to avoid anonymity
of the message creator and thus to make him/her liable.
There must be effective execution of penal
laws to punish habitual offenders and organization which are running
fake news propaganda. The government should
engage in International collaboration with countries
to help stop the spread of fake messages. The mainstream media must also work towards
investigative journalism to gain the public trust.
Conclusion
At the end
of this article, it can be concluded that freedom of press is covered under
freedom of speech and expression but
Fake news system has exploited this freedom. The web of fake news is all over
now especially because of these
digital technologies. People have turned towards social media platforms because
of their lack of trust in mainstream
media. But, the more news you read over social media platforms, the more are
the chances that you are reading fake news.
The
phenomenon of fake news has become a problem in India and in the world. It should be handled legally as many countries have made or
started working on anti-fake news laws. Similarly, specific laws are required in India making
a fine balance between freedom of speech and expression and abuse of this freedom.
What we need
is a free and diverse media and its platforms along with relevant and user
state policy which is more open and
this will be a good answer to fake news items. There must be due diligence
obligations on journalists to
fact-check and be transparent. The Press Council must be given more teeth so
that it can take stringent action against
those journalists who are not following
journalistic norms and conduct.