Can Regulation Curb The Spread? Evaluating Social Media Controls Against Misinformation

Misinformation in the contemporary era is mushrooming at a brisk pace. Recently, the World Economic Forum in its Global Risk Report 2025^[1], listed misinformation as the second-most significant risk in India. Despite this, India continues to lack a comprehensive framework specifically aimed at stifling the dissemination of misinformation. Even the Centre for International Media Assistance also reported that between 2011 and 2022, 78 countries have passed laws to limit the spread of misinformation and fake news on social media, which, on a cross-national examination, makes this regulatory gap more apparent.

Streamlining the current legal framework

Currently, the Print Media is governed by the Norms of Journalistic Conduct, framed by the Press Council of India under the Press Council Act, 1978. The television channels are governed by the Cable Television Networks Regulation Act, 1995, which inter alia provides that content which is obscene, defamatory, deliberate, false, and suggestive innuendos and half-truths is not to be broadcast. Similarly, for Social Media and Digital News Publishers, the government has notified Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 under the provisions of the IT Act, 2000.

These laws govern media platforms, but incidents of fake news have been on a constant upswing over the past few years, necessitating their modification. For instance, in 2020, a Harvard Study found that around 10% of shared images on WhatsApp in India were known to be misinformation. Also, the recent Aadhaar Data leak, where the personal information of around 81.5 crore Indians was leaked on the dark web through the Telegram messenger app, revealed that there is a call for more effective regulation of state surveillance over social media platforms. In the assessment of the severity of the situation, Justice Gokhale in Kunal Kamra v. Union of India observed:

“Presently, the threat of disinformation and hoaxes has evolved from mere annoyance to warfare that can create social discord, increase polarisation and in some cases, even influence election outcome. State and non-state actors with geopolitical aspirations, ideological believers, violent extremists, and economically motivated enterprise can manipulate social media narratives with easy and unprecedented reach and scale”. Justice Gokhale remarked.

However, a fundamental question arises: Can the state regulate misinformation effectively without encroaching upon Article 19(1)(a) of the Constitution?

Analyzing from a constitutional angle

Looking from the constitutional aspect, Article 19(1)(a) of the Indian Constitution, which grants individuals the freedom of speech and expression, the Right to Information was also added as a fundamental right in the State of UP v. Raj Narain case in the scope of the same article. Using Article 19(1)(a) as a means of spreading misinformation leads to the invocation of Article 19(2) by the State through which it imposes reasonable restrictions on such speech and expression.

Now, in order to determine the extent of such reasonable restrictions, the Supreme Court has developed various tests to measure the ambit of such restrictions. Recently, in Assosciation for Democratic Reforms (Electoral Bond Scheme) v. Union of India, the hon'ble court revised the test of proportionality, which is the four-prong test-

(i) Whether the act/measure restricting the fundamental right has a legitimate aim (legitimate aim/purpose)

(ii) Whether the restriction has rational connection with the aim (rational connection).

(iii) Whether there should have been a less restrictive alternate measure that is equally effective (minimal impairment/necessity test).

(iv) To strike an appropriate balance between the fundamental right and the pursued public purpose (balancing act).

All the above essentials act as a borderline, which, if the state tried to go beyond, would lead to Censorship. But, while social media on one hand is enhancing equal and open dialogue between citizens and policy-makers, on the other hand, it has fallen into the hands of various interest groups who have recognized its disruptive potential. This results in a paradoxical outcome where extremist views are peddled into the mainstream, thereby spreading misinformation.

Therefore, the Supreme Court in Facebook v. Delhi Legislative Assembly^[2] held the accountability of social media platforms such as the petitioner Facebook for posts made thereon by third parties, despite it being only an intermediary.

Cross-national analysis

Comparing India's regulatory standards, DPDPA, 2023, in comparison with European Union's GDPR Act, provides key areas where India's regulatory frameworks can adopt and fill the key gaps in their regulations.

In Art. 83(5) of GDPR, the fine framework for the violation of core data protection principles or data subjects' rights is set at €20 million or 4% of annual turnover, whichever is higher. Contrasting it with India's DPDPA 2023, the maximum punishment is set at 250 crores if there is a breach in observing the obligation of a data fiduciary to take reasonable security safeguards to prevent personal data breach.

Keeping a bound limit of 250 crore exempts giant platforms from covering into its ambit and exonerates them from the breach they committed. The huge difference could be vanished by the adoption of the 4% provision of the EU in India's DPDPA, 2023.

Cautionary Learning

It is quintessential here to look into the recent Australian Jurisprudence in the evolution of law on Misinformation and Disinformation. Recently, a bill^[3] was introduced by the Australian Government to enhance transparency and combat misinformation and disinformation content, and proposed a range of penalties, including 5% of the company's global revenue if it fails to curb the spread of misinformation.

The Bill was eventually dropped due to its high criticism and controversial provisions of vague and broad definitions, which allowed to declare anything as misinformation or disinformation, which ACMA feels to be true or false. In response to the bill, the Australian Human Rights Commission also said that “although there have been improvements to the bill, freedom of expression is not sufficiently protected.”

The main lessons for India from the abandonment of legislation are that there should be balanced regulation without transgressing the rights of individuals, and also keeping the editorial legitimacy in view.

Even media platforms shall also abide by some norms and regulations which the Nariman committee^[4], headed by F.S. Nariman, recommended-

1. Trusteeship Principle- According to this principle, professional journalists should act as trustees of the public and their mission should be to seek the truth and report it with integrity and independence.
2. Self- Regulation Principle- This principle focuses on impartiality and objectivity in reporting.
3. Content Regulation Principle- It emphasizes that prior content control goes to the root of censorship and is unsuited for Democracy.
4. Complaint Principle- This principle advocates for an effective mechanism to address complaints in a fair and just manner.
5. Balance Principle- According to this principle, a balance has to be maintained, which is censorial based on the principles of proportionality and least invasiveness.

Adoption of these principles could only be possible if there is an independent authority of media regulation, which would regulate the dissemination of misinformation and disinformation, and the independence of the authority will lead to the prevention of any arbitrary action. Media, being the fourth pillar of democracy, needs to be verifiable and legitimate to maintain trust, peace, and harmony in the State.

End Notes

1. World Economic Forum, Global Risk Report, 2025 ↑

2. Facebook v. Delhi Legislative Assembly (2022) 3 SCC 2025 ↑

3. Communications Legislation Amendment (combating misinformation and disinformation) bill, 2024kiujgtr45 ↑

4. Report of the Nariman Committee on Media Ethics and Regulation ↑

   The Author is a Law Student At Banaras Hindu University. Views are personal.