Regulating fake news in India is tough

The proliferation of technology, cheap smartphones, and reasonable data rates has enabled the democratization of online content. The flip side is that the speed of content distribution has made traditional journalistic controls of verification unfeasible. Thus, the unfettered flow of speech has become vulnerable to the peddling of unverified information. Recent incidents in India are indicative of potential harm, ranging from political misinformation to a spate of lynchings.

The government’s attempt at regulating fake news by suspending journalistic accreditation was a spectacular failure. Journalists viewed the circular as stifling the press and it was recalled. Similar attempts in Germany and France have been criticized. Germany has compelled social media companies to remove content that violates provisions of its criminal code, encouraging erring on the side of censorship. A proposed French law gives judges emergency powers to take down fake news during sensitive periods. Judges are required to order a takedown within 48 hours—too short a span to determine what is “fake”. Such ventures in Malaysia, Czech Republic and the UK have also been panned.

As the incident of withdrawal of the fake news circular indicates, the free speech implications at hand demand a cautionary approach. A preliminary issue is the difficulty in defining fake news.

While misinformation spread through social media has captured public attention, fake news itself is an amorphous category, including misleading news, unverified content, hoaxes, and even fabricated pictures in the nature of internet memes. The assessment may involve distinguishing mere poor journalism from deliberate attempts to spread misinformation.

Any top-down regulation that defines fake news simply as containing falsehood may be setting itself up for failure. It is likely that such regulation would be vague and over-broad, thereby not providing effective guidance for law enforcement or compliance. This has been the case with Malaysia’s Anti-Fake News Act, 2018, which defines fake news as “news, information, data and reports, which is or are wholly or partly false…or in any other form capable of suggesting words or ideas”.

Pre-censorship of news and information, while being virtually impossible due to the speed of content creation, will also violate the guarantee of free speech under Article 19(1)(a) of the Constitution. On the one hand, such legislation could divest individuals of autonomy. On the other, it could bolster the power of the government to censor opinions it is uncomfortable with. Any screening in the context of social media applications such as WhatsApp could also violate the fundamental right to privacy recognized by the Supreme Court. Furthermore, technologies like end-to-end encryption in messaging apps would pose a significant challenge to pre-censorship efforts. Therefore, a cautionary approach warrants avoiding overarching regulation in the form of anti-fake news legislation, irrespective of the benignity of its motivations. Entrusting a judge, the state or companies like Facebook with the task of making an evaluation of veracity will facilitate judicial, government or private censorship. This can breed a chilling effect and self-censorship.

It is easy for such regulation to fall into the trap of assuming the existence of a single and verifiable version of the truth. Apart from cases of patent and absolute falsehood, the line between truth and untruth may be difficult to draw. The notion of a verifiable truth has been contested in science. News is generally a mix of facts and opinions that are not amenable to neat segregation. To expose news gatherers to imprisonment and hefty penalties in the quest for such truth is misguided. Even the law only imposes a standard of “beyond reasonable doubt”, and not actual truth, for reaching a determination of guilt in criminal cases.

In light of the above, we are proposing a decentralized three-point agenda to address fake news. The first prong is to ensure critical media literacy, with critical digital literacy as a component. This would focus on encouraging individuals to learn the skills required to navigate the internet and question the content they are exposed to. Users should understand the limitations of digital media. Full Fact and Facebook’s toolkit offer useful suggestions about this. Design changes to social media platforms that flag content can also be incorporated.

The second prong is to nurture a general culture of scepticism among citizens towards information. Good practices, such as verifying the source of the news and corroboration with related news, ought to be advanced in schools and through public education campaigns. The role of the district administration and local community leaders is key in this regard. Heartening examples such as the Satyameva Jayate programme in Kannur schools and initiatives by the superintendent of police in Gadwal demonstrate the potential of such an approach.

Lastly, in a limited set of situations, such as when there is threat to life or national security, targeted and proportionate legal interventions can be explored. They should account for existing speech offences to avoid overlap. Despite their own flaws, existing provisions on hate speech, sedition and defamation already deal with certain kinds of harm that may be substantially similar to those posed by fake news. Implementation of the above three prongs will not only be a sustainable response to fake news, but will also strike the necessary balance with free speech considerations.

Sohini Chatterjee and Akshat Agarwal are research fellows at Vidhi Centre for Legal Policy.

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