This Article is written by Anchal Bhatheja (anchalbhateja@nls.ac.in)
There is an interesting distinction between the way Thomas Jefferson and Abraham Lincoln define the safety of a nation. Thomas Jefferson said, “When the press is free and every man able to read, all is safe. On the other hand, Lincoln took a different stance saying, “let the people know the facts and the country will be safe.”
This minor distinction in both the definitions reveals a real fact that facts need to be real and even more so accessible to the common masses and it is only then when the freedom of press will benefit the nation and the civilisation.
Technological limitations made the dissemination of information arduous till the early 20th century. But the proliferation of advanced technology has made the dissemination of the right information even more arduous in the 21st century which is also identified as the post truth era.
A peculiar characteristic of this era is that individuals make a choice on the basis of fiction and not merely facts. This fiction is rooted in their political, economic and social beliefs and is many a times devoid of logic and factual accuracy.
Considering this blurring distinction between fact and fiction which is threatening the stability of the political institutions, popular discourse and social harmony it is imperative to bring in legal solutions to the fake news problem which is hitting the reality hard.
In our opinion, the legal remedy to the fake news epidemic should unfold itself at three different stages. The law ought to disable fake news at the level of its creation, dissemination and manifestation.
1. Creation: The third parties which create and circulate fake news do it for political and economic benefits. The best solution therefore is to curb the fake news menace at the level of its creation. This can be done by regulating deep fake technology which enables users to manipulate and doctor various pieces of information to create fake images and videos so that people are not able to abuse these technologies to spread misinformation. Another way to tackle fake news at the stage of creation is to legally enforce one of the proposals mentioned in the code of ethics presented by Facebook to the election commission of India during the general elections of 2019. According to this proposal, the intermediaries should make it mandatory for the advertisers to register themselves and divulge all the necessary information. This disclosure of necessary information can help in distinguishing between fake and real news.
2. Dissemination: A fake news poses a greater challenge once it is created and circulated. Information and misinformation spreads like wild fire. Various factors like sender primacy where people share a piece of information just because it is being endorsed by someone they respect or appreciate, network effect due to which a piece of information becomes viral after it reaches the tipping point. Selective consumption where people share a news on the basis of incomplete information and the post truth effect where people don’t mind believing in something unreal just because their political opinions are such have a major role to play in the magnification of the fake news epidemic.
The best way to curb fake news at the stage of dissemination is to implement the proposed amendment to section 79 of the IT act 2002.
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This provision absolves the intermediaries of all the liability in the case where the third party publishes fake news or some other piece of information that insights violence. The recent draft rules mandate the intermediaries to proactively filter unlawful content and to remove it. The intermediaries argue that it would lead to state censorship but this argument loses its credibility because the proposal is to make them liable to filter and remove “unlawful” content purely within the meaning of the word in provisions of IPC. The big tech giants can be very well made responsible for detecting fake news and disabling it as they have the requisite technological and economic capital to do this by hiring more staff and procuring sophisticated artificial intelligence. However, the government can consider retaining certain immunities under section 79 in the case of new start-ups which do not have requisite resources. These draft rules can help impose reasonable restrictions on the giant tech companies and can encourage them to make internet a safer space.
3. Manifestation: After its dissemination, fake news has tangible implications. Be it those 5 innocent men who got lynched to death in rainapada due to a doctored video claiming that they were child snatchers or be it the circulation of insightful WhatsApp messages that aim at dividing people on the lines of caste and religion so as to effect the election outcome. These implications are dangerous for our constitutional democracy. In order to curb these unruly manifestations of the fake news epidemic, the government needs to have a twofold approach where special emphasis should be laid on law and policy at the same time. Along with the attempts to develop a legal mechanism to control the fake news menace, a comprehensive policy should be put in place for the purposes of promoting digital literacy in India. This can be done by conducting digital literacy workshops in schools, civil societies, colleges etc. the intermediaries can also help in the dissemination of information pertaining to healthy consumption of digital information. At the level of the manifestation of fake news, it becomes supremely important to penalise the perpetrators so as to deter other individuals from indulging in such activities. It should be noted that cyber-crimes need quick dispensation and technical expertise. This can be ensured by establishing cyber courts and strengthening various institutions like the press council of India.
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We need to deal with the problem at hand with a lot of care so as to ensure that the fake news epidemic is cured without infecting the constitutional spirit of freedom of speech and expression. It is high time that we stopped letting “false breaking news” from breaking the world apart because, misinformation is more dangerous than dearth of information indeed.
