There is a pertinent need to find a balance between free speech and the impact of fake news on a citizen’s safety.

Introduction

The World Health Organization (WHO) recently stated that world governments are fighting a battle on two fronts, Covid-19 and the large influx of information regarding the pandemic which have been called ‘infodemics’ by some. This flow of information provides an opportunity for misinformation and false news to spread quickly. With the advent of digital resources and a lesser reliance on print media, false news is spreading at an alarming pace, by virtue of a click or even a simple ‘forward’. It then becomes necessary for the Government to take regulatory measures to control the spread of such misinformation. Curbing fake news while protecting the freedom of speech and expression at the same time is no easy task and at a time when the world is reeling at the feet of a deadly virus such as this, the lines between the two are further blurred.

This article purports to examine the impact fake news has on people, strongly affecting one’s critical thinking and their ability to make informed decisions. It further highlights the need to have regulatory measures to curb fake news and the conflict in doing so within free speech jurisprudence. India’s existing model to contain the spread of misinformation and false news has been contrasted with other nations while also being checked for consistency with international human rights standards.

Infodemics in India

In March 2020, the Supreme Court of India in Alakh Alok Srivastava v. Union of India recognized the problem of infodemics in India and passed an order asking the State governments to comply with the directions issued by the Centre to curb the menace of fake news. The apex court further emphasized on the need to have a daily bulletin issued by the Government of India through all media avenues as a source of real time verified information regarding Covid-19 in a bid to counter the panic and apprehension caused by the uncontrolled flow of fake news and surrounding misinformation. In this petition, it was pointed out that the recent mass exodus of migrant workers was triggered by the apprehension created in the minds of the laborers due to fake news that exaggerated the duration of the lockdown to last for more than 3 months. This exit brought about by the spread of unauthorized information resulted in the deaths of poor migrant laborers who were finding their way home.

More cases of fake news have been prevailing in India during this lockdown period, leading the police to arrest people across the country. In Mizoram, the police arrested about 15 people for spreading fake circulars asking people staying outside the state to return back to their homes. In Odisha, fake news circulated through WhatsApp claimed that a person who came from outside the state was infected. The matter was found to be false after the police conducted an investigation. At the moment India does not have any dedicated legislation to regulate fake news, this pandemic is providing clarity as to why we need one.

Fake News V. Free Speech: The Indian Legal Set-up

Information Technology Act, 2008 (IT Act)

In India, social media platforms, identified under Section 2(w) of the Information Technology Act, 2008 as ‘intermediaries’ under Section 79(2)(c) are expected to follow due diligence while carrying out their duties. Initially, under the Act and as per the rules codified in April 2011, a liability for intermediaries did not arise if they were not responsible for inception, transmission and reception of such content through their networks. Consequently, this move provided intermediaries with immunity which ensured that they were lax about curbing fake news.

Upon realizing its mistake, the government rendered a solution at the other end of the spectrum i.e., to direct intermediaries to proactively censor content. These measures have been compared to Chinese style censorship. This can be used as a political weapon by the government to censor content that does not benefit them. Such a measure would be detrimental to free speech. In comparison with the landmark judgement in United States v. Alvarez where it was held that free speech, counter speech and refutation can overcome a lie, the measure of the Indian Government would be a far cry from the protection of free speech. The discourse should flow naturally and not along a doctored route.

Disaster Management Act, 2005 (DMA)

Section 54 of the DMA purports to deal with ‘false alarm or warning as to disaster or its severity or magnitude, leading to panic’ and this has been applied while recording arrests so far. It makes the offence punishable with imprisonment up to 1 year and the imposition of a fine. However, the same provision has been long criticized for being very specific to disasters at a time when the scope of fake news is much wider.

Although Covid-19 has been declared a disaster which allows the enforcement of this provision, the ability of the Act to curb fake news does not extend beyond the period of such a disaster. While this unique feature of the Act limits its application only to a period of disasters, there is a resultant positive outcome as well. It does not allow the employment of this provision to outlive the exceptional circumstances of a disaster, thereby ensuring that it is not manipulated by the Government to further enforce restraint on free speech.

Indian Penal Code (IPC)

Section 505(1)(b) of the IPC deals with the spreading of false and mischievous content that results in 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 public tranquility. The offender under this section can be punished with imprisonment of a maximum of 6 years and a fine. Section 505(1)(b) coupled with Section 54 of the DMA have been envisioned to contain the spread of fake news to a large extent.

However, the real problem of fake news is false content that comes in the form of unpaid stories and is disguised as real news. Pressing civil or criminal liability on fake news propagators would require a finding of actual malice, which would not be viable for fake news shared by many such unknown sources on the internet. The malice standard could be circumvented and strict liability could be imposed on the propagator of false information along with exemplary damages. However, the imposition of strict liability would require tracing the misinformation back to its source which has been acknowledged to be a troublesome process and not often an efficient one. Additionally, this mandate would not necessarily dissuade publishers from manufacturing false information and would not be able to undo the harm caused by a horde of social media users believing the content and acting on it.

It is not unknown that following an approach sticking strictly to legal machinery would be dangerous and ineffective. This calls for self-regulation where we ought to be more sophisticated consumers of news with an increased focus on the need to critically assess what we read. Awareness programs aimed at media literacy with emphasis on the importance of fact checking are needed. When sources of fake news outnumber the sources of their legitimate counterparts, fact checking often becomes a troublesome and onerous process. Additionally, daily press briefings by health officials coupled with public announcements to counter misinformation and regularly updated statistics would constitute efficient countermeasures in response to the propagation of false news.

Curbing Fake News within the Free Speech Jurisprudence

International Human Rights Law recognizes that in the context of serious public health threats and public emergencies threatening the life of the nation, restrictions on some rights can be justified. The scale and severity of the Covid-19 pandemic rises to the level of a public health threat which justifies the restrictions on freedom of speech and expression. However, such restrictions have to be consistent with the principles of international human rights law. The same has been enshrined under Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR) which requires the limitations to have a legal basis, to be strictly necessary, to be subject to review and to be proportionate to achieve the objective.

While it is necessary to take measures in order to contain the spread of misinformation, there is a flip side to this. The efforts to counter fake news could lead to censorship laws being imposed, or the suppression of critical thoughts that are required to make informed decisions. Recently, the Thailand Government, in a bid to contain the spread of misinformation, adopted measures that included a blanket ban on communications that are either ‘false’ or ‘misleading.’ Under this measure, the Thai Government arrested an artist who criticized the Government’s response to the public health crisis at hand. This provides substantiation to the argument that emergency measures undertaken to curb fake news could be misused by the Government to flagrantly violate the freedom of speech and expression and access to information, by muffling any voice of dissent or criticism against the Government.

In the days since the pandemic began the Indian government has taken a stance on its ill-planned operations and has condemned such criticisms on these operations as fake news. In the case of the migrant laborers’ exodus and the resultant deaths, the Government failed to account for them and the entirety of the blame was cast on the propagation of fake news. Even though misinformation played a large part in exaggerating the lockdown time period, equal blame has to be shouldered by the Government for the ill-planned measures it executed.

Proactive censorship is now taking hold in India with the Maharashtra Government notifying its people that no information regarding Covid-19 is to be propagated through digital or print media without obtaining clearance from authorized officials. This imposition of prior restraint not only restricts public discourse but also eliminates it since the lack of knowledge of credible information leads to the absence of informed questioning.

Complete transparency about the spread of the virus along with unfettered dissemination of accurate public information so as to spread awareness on this subject will be crucial during this crisis. Furthermore, there have been suggestions to lay down parameters that would measure the factual basis or the truth value of a story. However, this raises questions as to who should be the ones defining and measuring this. Allowing the Government to do so would put people at the risk of not being able to voice any sort of criticism against the Government. Moreover, having one single body maintain a monopoly over the manufacture of truth that is propagated in the society, is highly undesirable for the democratic functioning of any nation.

Conclusion

It is imperative that fake news be curbed during this crisis. However, it should not be at the expense of free speech. The way forward in cutting down free speech is temporary measures, measures that in the short run take away certain freedoms, but in the long run does not turn out to be a political weapon for any ruling government. Temporary measures will enable the government to make changes to the existing system in order to protect us. In our vulnerable moment we should let the government protect us, but it should not result in the government exploiting our vulnerability. The government needs to work with the public and the intermediaries to control the rapid spread of fake news. It is vital that we do so, otherwise fake news might prove to be the pandemic’s equal.

For more on COVID-19, see our special coverage.

Jacob Abraham is a second year student at WBNUJS, Kolkata.

Philip Ashok Alex is a second year student at National Law University Delhi.

Suggested citation: Jacob Abraham and Philip Ashok Alex, The Curbing of Fake News: A Pandemic Dilemma, JURIST – Student Commentary, May 12, 2020, https://www.jurist.org/commentary/2020/05/abraham-alex-fake-news-infodemic/

This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org