Our Laws Can Tackle Fake News – With the Right Improvements

If I&B Minister Smriti Irani is really serious about tackling fake news, here’s what needs to be kept in mind.

Union I&B Minister Smriti Irani’s move to combat fake news failed to properly address the problem and was rightly withdrawn.

(Photo: Ankita Das/The Quint)

India has a fake news problem. This should not come as a surprise to anyone with access to the internet, a TV connection, a newspaper subscription or the misfortune of being on a family Whatsapp group.

So the Indian Government decided to bring in new measures to combat fake news in India. This was certainly a surprise, since members of the Government have not shied away from spreading fake news themselves – just ask Dr Harsh Vardhan about Stephen Hawking, or Ravi Shankar Prasad about the Government’s involvement in the controversial SC/ST Act dilution case, as noted below.

Unfortunately, the new measures were, to put it mildly, rubbish, and so had to be withdrawn barely 15 hours later by the Prime Minister. This too, should not have surprised anyone, since the new framework for suspending the accreditation of journalists upon complaints of writing/propagating fake news was full of glaring loopholes.

For instance, why was there no definition of ‘fake news’? Or why was accreditation supposed to be suspended merely on a complaint by ‘any person’? Or what was the point of all this anyway, since the law already has provisions to deal with hate speech and defamation, and press accreditation could already be suspended if it was found to have been misused?

It really is remarkable that the Ministry for Information and Broadcasting didn’t realise these things when drafting (and I use the word ‘drafting’ in the loosest sense of the word) its press release. In the interests of helping out Minister Smriti Irani or whoever else decides to revisit the issue, here’s what the law already covers when it comes to fake news, and what really needs to be done to combat it going forward.

Permissible Curbs on ‘Fake News’

At the outset, we should perhaps note that there isn’t any single comprehensive law in India that tackles fake news. However, there is a serious question to be asked about whether publishing something fake is in itself worthy of being punished.

Freedom of speech can only be curtailed as per the limited circumstances set out in Article 19(2) of the Constitution of India – and falsehood isn’t one of those ‘reasonable restrictions’. There is a certain value to this, as arguments will always exist over ‘the truth’. The ongoing furore over the ‘fact-checking’ work being done by The True Picture is a great example of this. 

Thirteen Union Ministers shared an article by the website, which claimed to have busted four fake news stories that had been published by the media recently.

The Indian Express published a riposte to this article, pointing out that two of those ‘fake news stories’ weren’t fake, but based on official documents. In one piece about the Bhavnagar murder case, for example, the FIR itself includes the allegation that the Dalit victim there was killed because he rode a horse, making the charge of ‘fake news’ a bit of an overreach.

The Indian Express also quoted and published extracts of notes from the Cabinet Secretary and Foreign Secretary advising senior functionaries to skip a Dalai Lama event, casting serious doubt on The True Picture’s claim of this being fake news.

The fact that the police investigation in the former indicates there may have been other motivations, or that a Union Minister ended up attending the Dalai Lama event when it actually happened (nearly a month later), does not make the stories by The Indian Express fake. The True Picture and its supporters would obviously disagree with this statement, but at the very least it should show the Government that it isn’t quite so easy to label reporting true or false.

Going back to the issue of permissible restrictions, rather than trying to punish anyone for publishing anything false, which could quickly get complicated when it comes to satire or parody or subsequent events taking a different turn, what should be looked at instead are the intentions behind and consequences of such publication.

That is indeed what Article 19(2) of in the Indian Constitution does, allowing reasonable restrictions in the interests of:

• Sovereignty, integrity and security of India;
• Friendly relations with foreign States;
• Public order, decency or morality;
• Contempt of court;
• Defamation; or
• Incitement to an offence.

Existing Laws That Address Fake News

Fake news in relation to aforementioned topics would obviously be a problem. Spreading false information that incites riots or violence against a particular community, or which maligns someone’s reputation, is something which certainly needs to be prevented.

The thing is, our laws already include restrictions against speech on these grounds – and more often than not, it doesn’t even matter whether the statement in question is true or false.

Hate Speech and Incitement

Take, for instance, the law on hate speech. Under section 153A of the Indian Penal Code (IPC), it is an offence to promote or attempt to promote “disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities”. Any ‘fake news’ which attempts to spread such hate, something we see all too often in India, would already fall under this section.

If the Government is serious about combating fake news and what it represents, then they should be trying to ensure improvements to our hate speech laws, rather than floating rules which threaten a small group of Delhi journalists while leaving peddlers of hate unscathed. They would draft amendments to cover hate speech on the basis of sex or gender identity, as well as to spell out that threats against communities are also punishable.

The Law Commission in its 267th Report recognised this and proposed adding two new provisions to the IPC to do precisely this. Additional measures to ensure better implementation of hate speech laws would also be welcome, and might actually make purveyors of such dangerous hate speech think twice.

Defamation and Other Offences

We also have strong laws against defamation in India. Too strong, in fact, given that a charge of criminal defamation can stick even if the defamatory statement is true, if there is no “public good” in its publication.

The Arvind Kejriwal Apology Show demonstrates just how difficult it is to make statements against someone else – if the statement is false, it would make it even easier to use our defamation laws to make the life of whoever published it a living hell. Corporations and politicians are adept at using both civil and criminal defamation cases to keep news publications in line using SLAPPs (strategic lawsuits against public participation), which they are able to do because the law allows them to.

False stories about judicial proceedings would be covered by contempt of court laws. False stories about Parliament and other legislative bodies would violate privilege. What, then, is the need to come up with new guidelines on fake news – which isn’t even defined – allowing it to be misused and interpreted as per the whims and fancies of anyone capable of filing a complaint?

Suspension of Accreditation and Complaints to Press Bodies

Even the punishment prescribed in the aborted new guidelines was not really new. Guideline 6.8 of the Central Newsmedia Accreditation Guidelines 1999 states that accreditation can be withdrawn or suspended “if it is found to have been misused.”

There is no definition of what constitutes “misuse”, which has its benefits as it gives sufficient discretion to the press bodies – the Press Council of India (PCI) and National Broadcasters Association (NBA) – to allow for independent journalism.

Currently, complaints can be made against journalists and news media organisations to both bodies, though the PCI’s website (including the page on what complaints can be entertained and how) isn’t functioning.

Image captured on 4 April 2018 at 12 pm

While we don’t want a Government straightjacket definition of misuse and the things one can complain to the PCI and NBA, it’s important that these bodies try to have clear guidelines on what would fall within this – though any punishment or other measures should only be applicable after a proper process where the accused gets a chance to defend themselves.

Need for a New Approach

The only new thing the amended guidelines would have brought in, therefore, was the suspension of accreditation merely on the making of a complaint, without any assessment of the complaint, or inquiry into the matter. That violates the principles of natural justice, since the person complained against would be punished before she was even given a chance to defend herself. And the decision wouldn’t even be by a judicial or quasi-judicial body.

Combined with the lack of definition for ‘fake news’ (and indeed the impossibility of trying to use such childishly simple language without opening the door to ambiguity and misuse), and the lack of measures to deal with online material and social media, it’s clear that the approach taken by the MIB to take on fake news was a complete shambles.

Not least because there was no attempt at a consultation with relevant stakeholders, and not even, it would appear, the constitution of an expert committee, to look into how to tackle the problem.

If we really are to try taking on India’s fake news problem, it is essential that we actually take this seriously, rather than throwing out something that was probably meant to just distract the public’s attention from the problems gripping the country at present, including agitations over the controversial SC/ST Act judgment, farmer agitations, and unrest in Kashmir.

The Way Forward

Countries around the world are grappling with the consequences of the spreading of fake news and disinformation – Brexit and Donald Trump are the obvious examples, but there are many more.

Few countries have actually passed any actual legislation dealing with this, and if it makes Smriti Irani feel any better, none of them have covered themselves in glory just yet. Malaysia’s new law looks like a draconian measure to stifle any voices the government doesn’t like, for instance. Germany’s stringent new law against offensive online content has led to some absurd results, including the taking down of posts lampooning peddlers of fake news.

It’s a fine line between fighting fake news and chilling free speech, and toeing that line is going to require appreciating the provisions we already have to deal with the problem, as well as what is really needed to improve upon them.The MIB isn’t going to be able to do this on its own, and nor is the Press Council of India (which includes Government appointees, after all) – what’s needed is an expert committee, which will utilise inputs received through a public consultation.

You would be hard-pressed to find a better starting point for setting the parameters of such an exercise than those adopted by the European Union’s High Level Group to “advise on policy initiatives to counter fake news and the spread of disinformation online.”

With relevant modifications for the Indian context, these would read as follows:

1. Analyse in-depth the current situation and legal framework, as well as the potential political and social risks associated with the spread of disinformation;
2. Define the scope of the problem and canvass legislative or non-legislative interventions to limit the dissemination of fake content; in doing so, a distinction should be drawn between false information amounting to illegal content under existing laws e.g. incitement to hatred, violence or terrorism, defamation, etc., and false information falling outside the scope of such laws, and therefore not illegal;
3. Define roles and responsibilities of all relevant stakeholders with attention to the functioning of social networks and other online platforms, and the vulnerabilities of professional news media;
4. Assess the effectiveness of the voluntary measures put in place so far by online platforms and news media organisations to counter fake news;
5. Assess possible improvements to such existing voluntary measures,
6. Sketch out the direction for developing quality journalism (data journalism, investigative journalism, etc.) and improving media literacy as complementary actions to promote trust in media and users' awareness;
7. Identify guiding principles for possible self-regulation based on shared good practices and coordination of relevant policies and activities at national, regional and international levels.

Press regulation in India relies heavily on self-regulation but as the Zee News-Gauhar Raza fiasco showed, this is very toothless at present. At the same time, the last thing we want is for the Government to start having more power to meddle in the functioning of the press – rather, what we need is for there to be sound laws which can guide self-regulation, but for State intervention to only take place where there is something like incitement to violence.

With this in mind, the foundations of any effective measures to combat fake news in the country should be (a) improving hate speech laws (and correcting problematic ones like criminal defamation) and (b) encouraging the press to improve their self-regulation processes and enforcement.