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Countering Fake News- A Critical Appraisal Of Social Media Regulatory Laws

Sri Hari Mangalam
18 Jun 2020 4:14 AM GMT
Countering Fake News- A Critical Appraisal Of Social Media Regulatory Laws
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Fake news is essentially information created from nothing with the aim to push a particular agenda; a practice which in today's world is at the dearth of most social issues. Not only does an unverified news piece create misinformed opinions about an issue, it can and has had devastating effects on important social events; often even impacting the dynamics of decisive real-world situations like elections. Social media, in an attempt to democratize the information generation and transmission sphere, has invariably made it easier to spread unverified and argumentative pieces; situating a new sphere for dubious news media. The basic idea behind the social transition of information generation and the equivocal assemblage of news is contrary to the fundamentals of journalism. Social media may allow information to travel beyond communal boundaries, upholding the most fundamental element of democracies; however, its very algorithm is on ends with the tenets of true journalism. Journalism presents a balanced idea about a particular issue, which may not always be in agreement with the personal opinion of its subscribers; however, social media and its platforms were created to provide desirable information to its users; information that is in agreement with their views regardless of the true picture.[1] Fake news is the result of a continuous depiction of favourable opinions and agendas. Accordingly, this feature aims to analyse the social and real-world impact of fake news, cover the regulatory legislations available to control its spread, and present a few ideas for reform.

Fake News and Its Social Footprint

Fake news has a particular agenda i.e., is to formulate one specific response or opinion amongst the public about a particular issue. It essentially takes away the critical thinking aspect of social life and makes redundant what it truly means to be human. As human as it is to err, it is even more fundamental to think, analyse, and then believe.[2] In the process of accepting unvetted information, we leave out on the most basic element of human existence i.e., critical thinking and move further towards an ignorant way of life. We as humans abandon the philosophy of thought[3] and adopt one of unenlightenment. Moreover, news curated to support our pre-existing beliefs and opinions, now pushed even further by the expansive social media platforms, impacts aspects beyond our critical thinking abilities; it changes the entire dynamics of our social lives. A single banner on a double-decker in London which claimed that Britain would make more than 350 million pounds a week by leaving the European Union was cited by many as a significant reason for their vote in favour of the country's withdrawal from the EU.[4] However, the single most generous contribution that the country's ever made to the EU was in 2014, which fell a little short of a 100 million pounds.[5] The British citizens voted for a decision which would most likely change all international relations of their country, while massively influenced by fake information; borderline propaganda. This is just one example of how fake news can radically affect formulative decisions without any true basis. Not only does fake news impact major social and political decisions, it is also often used as a tool to inflate social conflict and spread communal disharmony.[6] In an incident closer to home, communal riots and violent protests were instigated in Uttar Pradesh's Muzaffarnagar, leading to the death of 41innocent villagers and bystanders.[7] A video showing a Muslim mob lynching two Hindu boys was extensively shared over WhatsApp and Facebook, which sparked violent responses from communal groups who went on to attack Muslim households in the area.[8] It was later discovered that the video was from a neighbouring country and was circulated only to fuel riots.[9] This is just one out of the hundreds of incidents where fake news and unverified information was used to push individual agendas.[10] Nevertheless, the problems from the spread of unverified information goes beyond restricting human critical thinking, influencing political decisions, and instigating communal riots; however, these are three very fundamental and devastating social impacts of its presence, which necessitate the need for regulations. These incidents express how essential it is to regulate the spread of information on social media and show the need to deliberate upon legislations currently available to ensure an equitable and authentic digital space.

The Regulations and Precepts against Fake News

India, unlike Singapore and Russia,[11] does not have a specific law against fake news; however, there are a couple of provisions which the country uses to tackle and control the spread of unverified information. Particular provisions of the Indian penal Code, for instance section 505(1)[12] penalizes the production and circulation of any rumour or report which may cause panic and/or alarm amongst its readers. Moreover section 419 of the IPC,[13] in consonance with section 66D of the IT act, 2000[14] penalizes any impersonation efforts made with the attempt to cheat. The provision essentially criminalizes attempts made to make fake claims seem legitimate, by impersonating a person and/or organization to make it seem like they endorse the particular claim.[15] Section 54, of the Disaster Management Act, 2005[16] also criminalizes any attempts made to create panic about a calamity via fake news and rumours. In addition to these more generic legal provisions, India also has particular laws which mandate a certain level of co-operation and assistance from online intermediaries i.e., the social media platforms. Section 79[17] of the Intermediary rules, 2011 requires social media platforms and other intermediaries to follow prescribed due diligence formats and aid the government in all its efforts to take down any fake or unverified information.[18]Moreover, the government is set to present the new Information Technology intermediaries Guidelines amendment rule, 2018[19] with provisions specifically made to tackle the fake news problem. The rule requires online mediums to categorically keep informing its users that the platform condemns any information uploaded or shared which is against public interest.[20] The 2018 amendment also aims to remove redundant provisions of the 2011 rule which fail to aptly define guidelines and express what qualifies as redressals.[21] Moreover, the rule gives a defined 72 hour window to intermediaries to respond to any requests from the government, allows a 24 hour access disabling provision, and includes a very controversial proviso which allows online platforms to keep track of a news piece's origin.[22] These laws and the 2018 amendment are essentially the Indian government's riders against the spread of unverified and dubious news pieces. Consequently, these provisions prima facie may seem equitable or for that matter even enough to tackle the growing social impact of fake news; however, the real scenario is very different. Accordingly, as important as it is to present India's social media laws, it's even more important to discuss the lacunas within them.

Issues within India's Legislative Tenets

A major issue with the current legislative tenets of the country is that almost all of its basic codes for criminal and delinquent acts do not have any fake news centric provisions. The Indian Penal Code, 1860[23] or the Information Technology Act, 2000[24] for instance, both include provisions which must be read in a specific manner, for its clauses to even remotely counter the negative social impacts of unverified information. Moreover, the lack of specific provisions can lead to perpetrators getting three-year jail stints,[25] for acts as inconsequential as forwarding a message, without verifying its credibility. Additionally, section 79 of the Intermediaries Rule, 2011[26] which mandates a certain level of co-operation from social media platforms currently holds a very narrow interpretation. In Shreya Singhal v. Union of India,[27] the Supreme Court precedented that a media platform can be made to take down a post or update only when an order from the government is issued.[28] The social media platforms aren't obligated to take down any material based on requests from aggrieved users, and can only be made to do so once a court order or governmental notification is passed. Unfortunately, this interpretation requires any fake news claims to go through an extensive and lengthy process; the results of which won't be able to change much, given the fast-paced spread of information on the internet. Accordingly, even though the issue with section 79 is its currently narrow applicability, the problem with the amended Intermediaries rule is its possible totalitarian usage. The rule mandates social media platforms like WhatsApp to track the origin of a message, a provision which would greatly risk user anonymity.[29] Even though such a tenet would make it very easy to weed out the original source of a fake news piece; it will on the other hand, ascribe an autocratic identity to the government. Accordingly, the Indian legislative sphere currently has very few and unequally balanced laws dealing with unverified information over the internet, any attempts to curb its regressive social footprint would require functionally amending the available provisions and then constituting a few new ones.

India's current legislative reforms have proven ineffectual in restricting the spread of fake news and the new regulations seem more like efforts made to track user origins on the internet, rather than restrict unverified information. India, to tackle the fake news problem at its roots, needs a comprehensive set of rules which are in consonance with its democratic tenets. The fake news issue needs strong responsive regulations; however, it cannot come at the cost of derailing the country's democracy.

Views are personal only.

[1]The Floyd Abrams Institute for Freedom of Expression, Fighting Fake News- Workshop Report, available at https://law.yale.edu/sites/default/files/area/center/isp/documents/fighting_fake_news_-_workshop_report.pdf (Last visited on June 12, 2020).

[2]Micheal C. Corballis, the uniqueness of Human Recursive Thinking: The Ability to Think about thinking may be the critical aspect which distinguishes us from all other species, 95 The American Scientist (May-June, 2007).

[3]Medium, The Thinker: The Philosophy of Thinking, September 30, 2016, available at https://medium.com/patrickdaniel/the-thinker-the-philosophy-of-thinking-b180d4dee2fd(Last visited on June 10, 2020).

[4]Linklaters, The Impact of Fake news, available at https://www.linklaters.com/en/insights/publications/crisis-ready/crisis-ready/tackling-erosion-of-trust-and-the-spread-of-fake-news/the-impact-of-fake-news(Last visited on June 10, 2020).

[5]Id.

[6]The Washington Post, Pizzagate: from rumour, to hashtag, to gunfire in D.C., December 6, 2016, available at https://www.washingtonpost.com/local/pizzagate-from-rumor-to-hashtag-to-gunfire-in-dc/2016/12/06/4c7def50-bbd4-11e6-94ac-3d324840106c_story.html(Last visited on June 10, 2020).

[7]First post, Muzaffarnagar: Two-year-old video fuels riots, cops probe MLA who shared it, September 9, 2013, available at https://www.firstpost.com/india/muzaffarnagar-two-year-old-video-of-lynching-fuels-riots-cops-probe-mla-who-shared-it-1094225.html (Last visited on June 10, 2020).

[8]Hindustan Times, A dangerous trend: Social media adds fire to Muzaffarnagar clashes, December 3, 2013, availableathttps://www.hindustantimes.com/india/a-dangerous-trend-social-media-adds-fire-to-muzaffarnagar-clashes/story-qWmUteMPV1ZkPZkoAlRyDK.html (Last visited on June 10,2020).

[9]Id.

[10]Kuldeep Nagi, New Social Media and Impact of Fake News on Society, 16 ICSSM Proceedings (June 6, 2018).

[11]Reuters, Singapore 'Fake News' law to come into force on Wednesday, October 1, 2019, available at https://in.reuters.com/article/us-singapore-fakenews/singapore-fake-news-law-set-to-come-into-force-on-wednesday-idINKBN1WG3ND (Last visited on June 12, 2020).

[12]The Indian Penal Code, 1860, §505(1).

[13]The Indian Penal Code, 1860, §419.

[14]The Information Technology Act,2000, §66D.

[15]Economic Times, Disinformation in times of a pandemic, and the laws around it, April 3, 2020, available at https://economictimes.indiatimes.com/news/politics-and-nation/view-disinformation-in-times-of-a-pandemic-and-the-laws-around-it/articleshow/74960629.cms (Last visited on June 12, 2020).

[16]The Disaster Management Act, 2005, §54.

[17]The Information Technology Act,2000, §79.

[18]Mondaq, India: Telecoms, Media and Internet Laws and Regulations, 2019, January 27, 2019, available at https://www.mondaq.com/india/media-entertainment-law/884840/telecoms-media-internet-laws-regulations-2019 (Last visited on June 12, 2020).

[19]Information Technology [Intermediaries Guidelines (Amendment) Rules, 2018.

[20]Mondaq, India: Analysis of the Information Technology [Intermediaries Guidelines (Amendment) Rules, 2018, March 29, 2019, available at https://www.mondaq.com/india/social-media/794624/analysis-of-the-information-technology-intermediaries-guidelines-amendment-rules-2018?signup=true (Last visited on June 12, 2020).

[21]Id.

[22]Id.

[23]The Indian Penal Code,1860.

[24]The Information Technology Act,2002.

[25]The Indian Penal Code, 1860, §505(1).

[26]Supra Note. 17.

[27]Shreya Singhal v. Union of India, AIR 2015 5 SCC 1.

[28]Mondaq, India: Impact of Shreya Singhal Judgement on Intermediaries, December 15, 2020, available at https://www.mondaq.com/india/it-and-internet/451642/impact-of-shreya-singhal-judgment-on-intermediaries (Last visited on June 12, 2020).

[29]Supra Note. 20.

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