NAVIGATING THE FAKE NEWS CONUNDRUM IN THE CHANGING SCENARIO OF CYBER LAWS IN INDIA
Author: Devesh Singh Tomar
B.Com LL.B (Hons.), LL.M (Criminal Law)
Co-Author: Shivam Raghuwanshi
B.A. LL.B (Hons.)
The recent release of the new Information Technology Rules of 2021 by the Ministry of Electronics and Information Technology has revived the discussion on the menace of fake news in cyberspace as the rules aim to combat the persistent growth of fake news and the widespread abuse of social media for the same. The new approach of increased accountability had mixed reviews from various stakeholders with multiple petitions filed in the Supreme Court against the implementation of these rules. The new regulatory environment which will be emerging with the implementation of the new rules will focus on creating an ecosystem of data localization thereby easing the regulation of cyberspace. These radical changes from moderate regulation to mandatory and strict compliance can make the intermediaries change their passive approach to dealing with fake news and other issues pertaining to social media. The present paper aims to analyze the role of cyberspace and social media in the rising menace of fake news conundrum while discussing the safe harbor laws and the need for change and associated issues with the dilution of the safe harbor principle under the Indian IT Regime.
The term ‘Fake News’ can be understood as propaganda communicated to an individual, a group of people or the public at large to deceive them with the help of such information. It is used to influence people to impair their decision-making or to make an intended result in the social-economic or political sphere.
This concept of ‘fake news’ has gathered a lot of attention and impact in recent years especially with the growing era of the internet. Such news or information has been described by many nomenclatures such as Rumors, Counter-Knowledge, post-truth, or a plain lie. This information ranges from a misleading or half-truth fact of a minor incident to a lie or rumors of government policy or a foreign nation, therefore having variable impacts in each and every individual situation.
The influence of politics in the phenomenon of ‘fake news’ has been vital wherein sensational, dishonest, and fabricated reports and headlines are published against the government and the opposition for political and financial gains.
The principle facts or essence of this news or information are fabricated, exaggerated or untrue, done either knowingly or intentionally for any objective. Different scholars have taken different approaches while determining the standardized meaning of the term ‘fake news. On one hand, a simplistic approach attempts to define it on the basis of the trueness of the information and whether it is misleading or not; on the other hand, some scholars have related it to the intention of the publisher of the news i.e., if he had the intention to deceive an individual or group or public at large. The latter approach would therefore create an exception of the negligent acts of the publishers whose reckless acts might have had serious effects.
In 2018, UNESCO published a handbook on journalism that defines two major terms associated with ‘fake news’ i.e., Disinformation and Misinformation. The former can be understood as an intentional attempt to manipulate people by way of dishonest information and often combined with other strategic tactics of hacking and compromising of persons; the latter is referred to as misleading information which is created and circulated without any particular malicious intent.
This menace of fake news runs both through print and electronic news media and is majorly circulated through social media. Once the news enters the mainstream media whether print or electronic, it undergoes numerous twists and turns in its forms and even in the meaning and intent, and it leaves a long-lasting impact even if it is discredited by the publisher. When such news enters the cyber world, it grows beyond the boundaries and is loaded with additional information which includes misinformation and disinformation, and untraceable in the sense as to who added the disinformation in the cyber world.
2. Role of the Internet in spreading fake news
All fake news is circulated with propaganda, which intent the internet users to react to the news in a particular way. This information is circulated via the internet with a targeted message to influence the audience into reacting in a certain way. Cyber propaganda is used both for communicating a valuable message for public welfare and with malicious intent to defame a person or circulate false information for certain objectives. Circulating fake news is one of the negative cyber propaganda which runs in cyberspace.
Two prominent reasons why the fake news propaganda is mostly run via the internet are, firstly, there are large numbers of active users of the internet especially on social media, this helps in providing impact to the fake news as it is circulated easily and instantly; secondly, the fake news can be easily made realistic with the help of animated or edited pictures along with edited videos making the news more believable and impactful.
According to a survey by Microsoft India, India tops the list of countries where there is most fake news circulated. The report states that the global average of people who encountered fake news is 57% whereas the average for Indians was 64%.
Misuse of cyberspace for political activities is a major issue wherein the political parties exploit the technology to spread fake news and together undermine the media, individual or opposition to manipulate the opinion of the public in their favor. All major political parties have set up their own cyber cell which creates and circulates information in a systematic manner across the web through social media, messaging apps and news publishers to influence the voters and public at large.
2.1. Role of Social Media in circulating fake news
The potential of social media in affecting the opinion of the masses and producing results can be understood from the fact that according to many studies the social media campaign against Hilary Clinton which included fake news campaign, the false narrative of Pope Francis endorsing Trump as a candidate and such other negative campaign is held to be a vital reason for Trump’s victory in 2016 Presidential election. Although the influence of fake news campaigns in political activities is just one aspect of this conundrum.
According to statistics, Indian forms around 160 million users of WhatsApp, which is a potent circulator of fake news as it connects the close network of peers who are most likely to trust each other upon receiving the information. The classic examples of such false information circulated can be the message forwarded during the Indian Demonetization when it was claimed that the new currency notes would consist of GPS tracking chips; one of the messages claimed during the initial days of the Covid-19 pandemic that it is the conspiracy of the government and in fact the virus does not exists, such messages can lead to public not believing the government and therefore not following orders.
In the current scenario, India faced various issues in vaccination drive due to a lot of false information about the vaccines in India, it was also claimed to be one of the biggest challenges for India during pandemics. The extent of fake news surrounding information relating to covid-19 can be understood from the fact that the major social media intermediaries started the overdrive to combat the misinformation on their platform. Many experts were of the opinion that the social media platform has to step up and go beyond the labeling of the post or information and act to create friction between the users and misleading information.
3. Safe Harbour Protection and Fake News
The internet is home to innovative and interactive communication among people all around the world. Social media facilitates the users to share photos/videos, express their opinions, blogging, gaming, and much more. It can be rightly said that social media plays one of the most important roles in the lives of individuals in this 21st century. However, there are certain negative sides of social media; the persistent and constant abuse of free speech to promote hate speech and discrimination along with posting of fake information on social media in form of various propagandas, satire, misleading headings, or biased news and opinions.
The Indian Cyberlaw regime considers the App hoister, web hosting service providers and other internet service providers as intermediaries and has been defined under the IT Act of 2000. The IT Act was enacted to provide legal recognition for electronic transactions and e-commerce. It provided due recognition to paperless transactions, digital signatures and also penal provisions for certain offences along with regulating the civil liabilities of the intermediaries. However, the 2009 amendment of the law, section 79 of the act has amended the parliament, and the modified provision provided immunity to the intermediaries for tortious liabilities under the law. The original provision had provided immunity in regards to the offences under the IT Act, but post amendment they were granted immunity beyond the It Act from all forms of civil liabilities. This Immunity granted to the intermediaries is referred to as the ‘Safe harbor Protection’.
In respect to the immunity granted to the intermediaries after the 2009 amendment, only the end-user of social media platform who publish any unlawful content would be made liable and the intermediaries who are hosting the platform shall not be held liable.
However the immunity is subject to certain conditions which must be fulfilled to obtain immunity under section 79 of the Act. The prominent of the two conditions is that the intermediary shall not select or modify the information contained in the transmission and secondly, the intermediary is mandated to observe due diligence and follow the guidelines issued by the government under the Act.
In the case of Google India v. Visaka Industries, the Hon’ble Supreme Court observed that in spite of the respondent complaint about defamatory information on the appellant’s website, they did not take any adequate action to take down or block the material or stop the dissemination of unlawful and objectionable material; this conduct of the appellant was understood as not observing due diligence on the part of intermediary and therefore the immunity under It Act was not granted to the appellant.
This safe harbor principle conflicts or rather overrides the existing common law principles; according to the English Common Law (also followed in India), innocent dissemination is permissible to provide that the disseminator has no knowledge and his/her failure to detect the defamatory content was not due to the negligence of the disseminator.
With self-regulation gaining legality to combat fake news and due-diligence by intermediary required to obtain immunity, the intermediary may choose to be passive and not wish to be pro-active and risk their immunity as due-diligence is linked with the mandate that the intermediary shall not modify or edit any information or content in the transmission.
The Parliamentary Standing Committee in their observation on the amendment of the IT Act did not side with the assumption that the intermediary may not be aware of the acts of the users of their services and hence only the end-user should be penalized. The Committee was of the opinion that the fact that the intermediaries’ service or website is being used for any form of unlawful transmission, in such case under no circumstance can there be an absolute grant of immunity to the intermediary; and it was recommended that the government should cast a definite obligation on the intermediary in case the service is being used to cause damage to the victim.
From one perspective, the safe harbor principle does not seem to meet the test required under Article 14 and 21 of the Indian Constitution as it sounds discriminatory and arbitrary as it imposes the liability on only one person (end-user) whereby ignoring the responsibilities of the intermediary; also there seems no competent reason or objective to be achieved (irrespective of objection taken by the Standing Committee) by granting an absolute immunity at the cost of individual’s fundamental rights which are guaranteed under the Indian Constitution.
The alarming rise in cyber-crimes on the social media platforms which includes fakes news conundrum has proved that the self-regulation and absolute immunity has proved to be a counterproductive move of the legislature. Therefore the decade-old safe harbor principle needed to be re-visited, which the Indian Government has attempted to do by the notification of the new Intermediaries Rules under the IT Act.
4. Information Technology Rules of 2021
The new IT Rules were notified by the Central Government on 25th February 2021 with the aim to regulate the intermediaries and the digital media and to impose additional obligations on the social media intermediaries to bring the online content within the prescribed code of ethics and a mechanism for redressal of the grievances.
The new rules can be stated to address three main categories of intermediaries and digital media entities i.e. firstly, intermediaries and social media intermediaries; secondly, publishers of news and current affairs, this includes new agencies and individual news reporters to the extent that they are transmitting the content in a course of systematic business or commercial activities; thirdly, publishers of the online curated content.
The extension of the IT rules to cover the news aggregators, news agencies, and also individual reporters can be understood as a step towards the curbing of rising fake news in the cyberspace, along with the due diligence of social media intermediaries can be effective in curing the issue of fake news. Some of the provisions of the new IT Rules which are relevant to the issue of ‘Fake News’ are stated below:
The rule defines the terms News Aggregators as an entity that performs a significant role in determining the news and current affairs content and makes it available to the users access to such news and current affairs which is aggregated, curated and presented by the entity. The rules also provide for the definition of ‘publisher of news and current affairs content’, it is defined as an online paper, news portal, news agency or news aggregator, or such similar entities but it does not include newspapers or e-papers of the newspapers.
Under Rule 3 of the Rules, the intermediary on receiving the ‘actual knowledge’ via Court or the Government is bound to remove information which is prohibited in relation to security and integrity of the nation or its relation with foreign states, public order, morality, contempt, etc. Such information is needed to be taken down within thirty-six hours from the actual knowledge by the intermediary. However, misuse of this provision by the government agency and the compulsion to take down information within thirty-six hours doesn’t allow the intermediary to take reasonable discourse in case of its disagreement with the order of the government; this can have serious implications on the free speech and lead to the arbitrariness of the government agencies.
The significant social media intermediary is expected to enable users in India to voluntarily be required to verify their accounts, the mechanism for the same has to be adopted by the intermediary and can include the mobile number of the user. This is an attempt to restrict the increasing number of fake accounts which are generally used to spread fake news or commit one or the other form of cyber-crime.
An Intermediary is also required to provide a proper notice on its website that all the publishers of news and current affairs must furnish the relevant details about their account to the Ministry. The term ‘News and Current Affairs’ has been defined in the rules to include newly received content such as analysis of any recent social, political, economic, or cultural event.
The publishers are also required to disclose the details of all the grievances received and the manner in which they are disposed of, and the same must be updated monthly by the publisher. Although the publishers have criticized this rule stating that this requires them to publish far more information than necessary and creates an onerous obligation on them.
The significant Social media Intermediary shall also be required to enable the identification of the first originator of any information on the order of the Court or any competent authority under the IT Act. Under this rule, the intermediary shall be required to furnish the copy of the information in electronic form; however, according to the rule, such order should be passed if the issue is pertaining to the interest of sovereignty and integrity of the nation, public order, defamation, etc.
While the regulation of the content seems necessary at this time due to the rise in cybercrimes and increasing usage of cyberspace and social media; however regulating the media could have far-reaching consequences on the freedom of speech and expression as the misuse of power cannot be said to be an unusual event in Indian Politics. The enhancing the scope of regulation of social media intermediary and digital media, the instances of access request in the name of investigation and takedown content in name of national security can become a daily phenomenon, harming the liberal approach of the public. This also affects the delivery of content as the intermediary would attempt to be extra cautious in delivering the content.
The Privacy issue is still unsettled with the question now referred to the Court with the new Petition filed by the Significant Social media Intermediary ‘WhatsApp’ which challenged certain rules on the grounds that it would severely undermine the Right to Privacy of its users.
4.1. Tussle between WhatsApp and Government
The recent development in the new IT Rules regime came with the Significant Social Media Intermediary ‘WhatsApp’ challenging the rules by moving to the Delhi High Court. The SSM has challenged the ‘traceability’ clause of the new rules claiming that the rule is violative of the Supreme Court ruling in the Puttuswamy case wherein the Right to privacy was held to be a fundamental right. The SSM has prayed to declare the clause unconstitutional and stop it from being enforced.
The clause which required the SSM to trace the first originator of the information was criticized by many experts and likewise, it was stated by WhatsApp that this will require the private entities to collect and store the personal chats and messages of the users which will account to billions of messages on a daily basis. This shall harm the privacy of the users as the messages contain much personal information ranging from political views, financial details to even content of sexual nature consensually shared among users, thereby making them vulnerable. WhatsApp added that this clause can lead to innocent people caught up in an investigation which is considered wrong by the government agencies even if it was not shared with any wrong intention.
WhatsApp added that the clause goes against the policy of end-to-end encryption which has been a pillar of privacy of the users and breaching it will have chilling effects on what people communicate in the private sphere, thus violating the fundamental right to free speech and expression.
The Government responded with various clarifications on the IT Rules after WhatsApp challenged the same in the High Court. The Ministry of Electronics and Information Technology clarified that the intention of the rule is not to violate the privacy of any individual but is only required for the purpose of prevention and investigation of serious/heinous offenses as mentioned in the rule. It was further clarified that the rule has been analyzed with the proportionality test of the Constitution and is not violative of it, and the traceability clause shall be used only in such circumstances where all other alternative remedies would prove to be ineffective and sufficient legal safeguards will be implemented to certain that the information is sought only after due process of law and only incompetent circumstances.
The government has laid emphasis on why it is important to ascertain the originator of the information for an example of WhatsApp messages which are circulated in bulk to ignite various unlawful acts such as mob lynching and riots; therefore the rule is in the public interest. The government stated that the acts of WhatsApp are an unfortunate attempt to prevent them from compiling with the rules laid by the government; while attempting to avoid its responsibilities they are seeking protection safe harbor protection.
In the press release, it was mentioned that the Law Minister has stated that no rule shall affect the normal functioning of the intermediary and likewise have no impact on the common users, the intermediary has not been directed to end the end to end encryption, they are free to adopt any technology to maintain the encryption and provide the relevant information in encrypted form if directed by the Court or any other competent authority.
On the other hand, WhatsApp in its petition is certain on the fact that implementing such a rule could pose huge risks for professionals including journalists, advocates, and politicians who could face the risk of investigation for criticizing the government or its machinery and even being associated with such person. This could have a large-scale impact on the professional confidentiality and rights of opposition and activists in the Country.
WhatsApp has also claimed that the rule does not fulfill the necessity test and that the order for identification of originator can be passed without judicial oversight in certain cases, this poses a great threat as it cannot be guaranteed that there will not be any ‘misuse’ of power by the Government and therefore the rule is constitutionally invalid as it encroaches over the fundamental right of users without adequate safeguards in the law.
Technology has become a vital part of this age and its relevance and dependence in every sphere is an established fact that cannot be debated. Due to such dependence, any misuse of the technology can have a large impact on the public; therefore it is necessary to formulate policies to prevent and punish offenders for misuse of technology. However, it is also equally important to carefully draft and implement such policies which pass the necessary constitutional tests as the policies will also have a large impact on the public.
The IT Rules of 2021 has been enacted at a time when a vast number of individuals have become dependent on social media and has made it a part of their life. Currently, WhatsApp has a user base of approximately 340 million, Facebook has 290 million and Twitter has around 17 million; with such user bases, the social media platforms cannot ignore their responsibilities and emerging challenges of fake news and crime against women. The algorithms of these platforms often fail to identify and distinguish between the relevant content and the false information on the website.
While the regulation seems to be necessary, it cannot be assumed to mean excessive obligations and control over these platforms as with the increasing use of such platforms, they form a vital part of speech and expression in today’s time. The new rules although enacted with the right intentions seem to be lacking in many aspects.
The government failed to provide clear definitions of the terms and the majority of definitions are widely inclusive in nature, making them vague and having the capacity to include any service provider within its scope. The privacy concern is the most vital aspect of these rules as the rules may have the potential to end the encryption policy of these intermediaries who do not store or access the private communications of the users. The end of this policy will pose several threats to the users not just pertaining to the prosecution by the government but also a threat of private data being leaked on the internet if the intermediaries are made to store the information in a decrypted form.
The rules must be implemented only after a close analysis of their negative effect on the speech and expression of individuals, privacy issues and other issues. On the other hand, it must be noted that the social media platforms have been mostly sophisticated in their approach towards fulfilling their moral obligations in combating fake news and misinformation on their platform.
The preventive measure must be harmonious with the freedom of the platforms as they possess a global influence and the freedom is necessary to maintain the pluralistic climate along with the legal actions to avoid fake news.
The decreasing faith of the public in mainstream media is also one of the reasons for rising instances of fake news circulated on social media as the lack of trust often makes the news reliable and trustworthy, combating this issue would require diverse journalism by mainstream media across all platforms to gain the trust of the public and educating the public in respect to fake news that exists on the internet.
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