Fake News Alert!!! : Types and Possible issues before formulating any law on it.

During this lock down situation, we have witnessed array of rumors or fake news; from Amul Company shutting down its milk chilling centers to the effective use of ginger, lemon and honey to counter the virus or to dispersing or spraying of the medicine by helicopters. Clearly, the proliferation of inaccurate or misleading news is spiraling upwards, especially during Covid-19 Pandemic situation. Our mobile phones and social media accounts are flooded with fake posts, doctored videos and congenial but unverified theories (especially qua the origin of Corona Virus and its cure)[1], which are quickly shared or forwarded, especially through Whatsapp, Tiktok and Facebook, and out of which some may tickle your fancies at one hand, but some may create tension and unrest amongst people at large. For instance, just couple of days ago, a video on social media went viral where the soldiers of two different armies were shown to be engaged in a provocative incursions and it was being claimed that Chinese soldiers are provoking the Indian army soldiers at the Ladakh Indo-China Border, but the original video was traced back to the year 2014 and pertaining to Arunachal Pradesh Border, though the Indian army has never avowed for the video as well.[2] Such unverified claims or rumors are dangerous and have the ability to instill fear and terror in the minds of people and may cause chaos and disruption in the society and tensions between the countries.

Hence, the question is that why this concept of ‘Fake News’ has assumed significance in recent times and it is also worthwhile to know that in what forms, it exists or reaches to us.

1. The concept of ‘Fake News’

False news stories, often of a sensational nature, are usually created and distributed for the purpose of generating revenue, or for fulfilling oblique motives or for securing political advantages or maligning someone’s reputation. But the concept of ‘Fake News’ is not a new thing as many occasions can be cited in the history where Kings or Empires used to spread false news to gain political or moral support of the public or to cheat the enemies.[3]. In simple words, it would mean any information which has falsity in its content, in whole or in part, regardless of the fact that whether it is spread deliberately (i.e. disinformation) or non-deliberately (i.e. misinformation). By most of the definitions of ‘disinformation’, as available, it is deducible that there are two key aspects of disinformation:

1. The falsehood of the information
2. The intention to mislead [4]

2. Forms and Categories-

There are different forms and categories of Fake News which are directed at different kinds of audience and some of the main forms/categories are discussed below:

1. Rumors and Belief-Echo – Rumors could be true or false. They may have something and may not. Nonetheless, rumors may have an enormous influence on people’s perception of a situation or a person. However, the term ‘Belief-Echo’ applies to the phenomenon that, even after an alleged rumor has been established to be false, the belief-echo still has an influence on people’s perception of the person/institution at the center of the rumor. Recently, a message was being circulated that our Prime Minister has been appointed as chairman of WHO, but there is not even any such post exiting the WHO organization, and such claim has been rejected as ‘Fake News’[5]. But the influence and the positive image which such messages create in the minds of people can be inextricable.

1. Propaganda – It means any kind of false or misleading information, including misquoted statements and biased or slanted news, spread or distributed with the intention of influencing people’s opinions or behavior, even subliminally, or to promote particular set of ideas. In country like India, where there are different religions and communities, propaganda has always been used by politicians or religious leaders to generate hatred towards a particular sect or community by creating a false image in the minds of their followers. For example, just a month ago, after the Tablighi Jamat incidence, we received heavy amount of messages/posts, which were mainly targeted towards a particular minority group and labelling them as the enemies of the country. However, when these messages/posts were checked or verified, about 1/3 of them turned out to be fake. [6] This proves that it was nothing but just a propaganda to malign the reputation or the image of the minority in the eyes of majority. Sometimes even media channels also propagate sensationalized news or distorted facts to pressurize state agencies.  Recently, Mumbai police has alleged that famous news anchor Mr. Arnab Goswami has been misusing its position to malign police and to indirectly sway the investigation being conducted in criminal cases filed against him.[7]

1. Ideology or Authority Challenging News – Sometimes, when true facts or news tries to challenge someone’s ideology or established authority, then that news is usually labeled as ‘fake-news’ as well. In simple words, attempts to present facts and events from the perspective that is not based on the shared set of assumptions would likely be dismissed as ‘fake’.[8] For example, our neighboring country Pakistan denied the conducting of surgical strikes by Indian Army in Pakistan-Occupied Kashmir in 2016 and termed it as ‘fake news’.[9]

1. Satires, Parodies & Predictions –Satires and Parodies are used to criticize policies and decisions in a comical sense, which sometimes may use some false or made-up stories. And, sometimes, predictions are also made about the possible results of polls or other events or possible decisions to be taken by authorities or big companies by media channels. In real sense, these forms of news are particularly important for forming political opinions and also helps to take timely decisions or prepare better for upcoming events. These types of news forms cannot be strictly termed as ‘fake news’ but an offshoot of these types has always been that a number of people actually believe them to be true or get confused, which can produce same ramifications as ‘fake news’ would do. Hence, proper disclaimers or unequivocal headlines or taglines are required to dispel any confusion in the minds of viewers.

The other types of fake news could be ‘Lies and Bullshits’, ‘Ad-driven News’, ‘Sloppy Journalism’, ‘Misleading Headings’, or ‘Fake reviews’, ‘Yellow Journalism’ as well.

3. Considerable Legal and Policy Issues

Undoubtedly, the impact of Fake News is increasing day by day, the governments of different countries[10] are also getting active in introducing new laws and policies to curb the menace of it. However, some legal and policy related issues and considerations have also cropped up, which are worth considering before regulating the issue of ‘Fake News’ and these are mentioned as below:

1. Freedom of Speech and Expression – It is a basic and fundamental human right (recognized by the constitutions of all the countries) and it is important to keep in mind while enacting laws or implementing policies that this right should also be respected for sure.

Moreover, the important issue is also that whether the human right to impart information is only limited to “correct” statements? And if it also includes the right to disseminate information and ideas that may shock, offend and disturb, without verifying the contents. So, the prohibitions on disinformation may violate international human rights standards, while, at the same time, this does not justify the dissemination of knowingly or recklessly false statements, especially by state actors[11]. The dissemination of false information also interferes with Right of Public to know and seek or receive correct information. So, a complete ‘Blanket-ban’ policy could give rise to ‘freedom of speech’ issues in one scenario and ‘No-ban’ Policy would affect the ‘Public Right to know’ in another scenario. Therefore, a balanced approach needs to be adopted whereby both the important aforesaid competing human rights are protected.

1. Satires/Parodies/Ironies as a recognized Exception – Parodies or Satires or Ironies, though it could mean as misinformation or ‘Fake News’ for some people, should be protected and encouraged (by treating them as an exception) as they are inherent part of freedom of speech (political) and they are in interpretative in nature and eventually, help in developing more thoughts and framing opinions and perspectives. Commentators and News-Presenters commonly use these to make their speech a bit more interesting and appealing. So, while framing laws and policies, Satires/Parodies/Ironies should be recognized as an exception.

1. Right to Freedom of business/profession – Media companies and Journalists/correspondents have also the right to conduct their business/profession bonafidely, without any interference or any fear of being prosecuted. Too much restrictive laws such as repressive rules regarding the establishment and operation of media outlets and/or websites or denying accreditation to their journalists and politically-motivated prosecutions of journalists; unduly restrictive laws on what content may not be disseminated, may have a chilling effect upon this right and would invite serious repercussions. We must also assure that such laws are not being used as a tool by some Governments to suppress dissent and/or to control public communications, as the States are under a positive obligation to promote enabling environment for freedom of speech and expression but not to curtail it.

1. Foisting liabilities on Intermediaries – Information Society service providers, social platforms and other Intermediaries has played a pivotal role in revamping Individual’s ability to seek, receive and disseminate information. They should never be liable for any third party content relating to those services unless they specifically intervene in that content or refuse to obey an order adopted in accordance with due process guarantees by an independent, impartial, authoritative oversight body (such as a court) to remove it and they have the technical capacity to do that[12]. So, it is really important to fix their liability in accordance with their roles and contribution.

1. Vertical approach or Horizontal Approach – There are different kinds of Fake News (as already mentioned above in Point no.2) which are targeted at different audiences by different channels and has different slant motives. So, there cannot be one solution or Horizontal-type approach in dealing with all different types of Fake News. Distinct actions/measures should be tailored to suit diverse wrongdoings: Immediate takedown where the news is proved to be false immediately, notice-and-notice for IP infringement, notice-wait-and-takedown for defamatory information, and notice-and-takedown and notice-and-suspension for hate speech. Notice-and-judicial-take-down provides an alternative that should be available in all cases[13]. So, a certain vertical approach (providing different remedies/measures for different violations) should be followed, while framing policies and laws.

1. Conflicts of Applicable Law and Jurisdiction – Last but not the least, the issue of Conflicts of Applicable Law and Jurisdiction, is a really relevant legal issue, given the fact that the Fake News problem is cosmopolitan in nature and the individuals or entities which generate fake news or intermediaries which host it could be from different countries and similarly, the persons/public who become the victim or misled by the fake news could of some other country. So, when any matter is filed before a court of any country for take down of Fake News or for any other related reliefs, then the trial court has to deal with the complex issues of jurisdiction and choice of Law and in the absence of any international conventions/agreements, it would be difficult for the trial courts to find the answers to these issues. Hence, it is also advisable rather necessary for all the countries of the world to come together and conclude international conventions to deal and/or solve the aforesaid issues.

4. Actions to Curb ‘Fake News’.

The Problem of ‘Fake-News’ and its interference in election systems is increasing day by day, so in order to put a clampdown on Fake-News, different countries/jurisdictions have passed/proposed the laws, such as Germany has adopted the Network enforcement Act[14], which applies, regulates and foists liabilities on Tele-media service providers and platforms which provide Journalistic and editorial Contents and France has passed the new law[15] , which aims to empower judges to order the immediate removal of “fake news” during election campaigns.

However, in India, there are no special laws in the country, as of now, which specifically deals with the issues of Fake News or criminalizes the creation or sharing or spreading of it. Nonetheless, under civil or tort law, a victim or an aggrieved person can also bring an action for damages or compensation against the defaulter or a culpable person. However, some general laws can be invoked to take action against the culprits such as:

Section 505(1) of Indian Penal Code, 1860: The punishment for making, publishing or circulating any statement, rumour or report which may cause fear or alarm to the public, or to any section of the public.

Section 54 of the Disaster Management Act, 2005: Whoever makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic.

Besides, many private fact-checking websites and news channels (such as Boomlive.in, factchecker.in or Altnews.in) are also coming forward to verify the source and content of the news/information being distributed and to make the general public aware about the consequences of fake news. These fact-checking websites also allows users/viewers to send them any video or image to verify as to whether such video/image is doctored or original.

When majority of the population is sitting at home, and the viewership or sharing of such fake content is at its peak, the repercussions which may follow could be overwhelming. Members of general public form their opinion upon the basis of information which they receive through different channels. However, if a majority of the people believes in something that is factually incorrect, then the misinformation may form the basis for political and societal decisions that will run counter to the country’s interest; if individuals are misinformed, they may likewise make decisions for themselves and their families that are not in their best interest and can have serious consequences[16]. Given the staggering rise in the creation and spread of the rumors, and in these tough times of pandemic, the virus of Fake News is no less than a lethal threat to human society. That is why the problem of Fake News cannot be undermined or neglected by the states and it is high time to regulate the ways/methods dissemination of information and block the generation or spreading of the Fake News.

However, equally important is the aspect that while under the garb of formulating laws and framing policies to tackle the problem of Fake News, the competing rights and interests of the different entities (including citizens, media outlets, intermediaries and social platforms) should also not be jeopardized or eclipsed, which could also go against the public interest in the larger run. All what is required is to strike a balance between competing interests by adopting proportionate measures, which are to be applied in accordance with the facts and circumstances of each case. Resorting to blanket ban of fake-news or over-restrictive laws could not be an option as well. Hence, it is recommendable that the States, while formulating laws or policies on this issue, should take into consideration the aforesaid issues.

By:

Himanshu Arora

LL.M (IP & IT LAW)

29/05/2020

Himanshu.arorais@Live.in

Views and opinions are purely personal in nature.

[1] Nishita Jha, ‘Fighting With Boomers About Coronavirus Misinformation On WhatsApp Won’t Make Any Of Us Less Afraid’ – https://www.buzzfeednews.com/article/nishitajha/coronavirus-india-whatsapp-rumors

[2] Jignesh Patel ‘ Video traced back to 2014 shared as recent clash between Indian and Chinese soldiers’ –https://www.altnews.in/video-traced-back-to-2014-shared-as-recent-clash-between-indian-and-chinese-soldiers/

[3] Echikson (2018) reports that in the 13th century BC, Ramses the Great spread lies and propaganda portraying the Battle of Kadesh as a stunning victory for the Egyptians. The battle was actually a stalemate.

European Parliament, ‘The legal framework to address “fake news”: possible policy actions at the EU level’,

< http://www.europarl.europa.eu/RegData/etudes/IDAN/2018/619013/IPOL_IDA(2018)619013_EN.pdf>

[4] Ben Nimmo, ‘Identifying disinformation: an ABC’, Institute of European Studies,  Issue 2016/01 – February 2016 < https://www.integrityinitiative.net/sites/default/files/2016-05/Identifying%20disinformation%20ABC.pdf>

[5] Kinji, ‘False claim that PM Modi was appointed the ‘chairman’ of WHO – a position that does not exist’ https://www.altnews.in/who-doesnt-have-chairman-post-false-claim-viral-that-narendra-modi-has-appointed-as-chairman-of-who/

[6] Niranjan Sahoo, ‘How fake news is complicating India’s war against COVID-19’ https://www.orfonline.org/expert-speak/how-fake-news-complicating-india-war-against-covid19-66052/

[7] Apoorva Mandhani, ‘Maharashtra govt goes to SC against Arnab Goswami: Insulate police from ‘pressure threat’-  https://theprint.in/judiciary/maharashtra-govt-goes-to-sc-against-arnab-goswami-insulate-police-from-pressure-threat/414273/

[8] Damian Tambini, ‘Fake News: Public Policy Responses’, Media Policy Brief 20. London: Media Policy Project, London School of Economics and Political Science, Page 3-4

[9] Pakistan Again Denies 2016 Surgical Strike, Calls it a ‘Figment of Indian Imagination’ https://www.news18.com/news/india/pakistan-again-denies-2016-surgical-strike-calls-it-a-figment-of-indian-imagination-1990907.html

[10] IKIGAILAW, ‘The “fake news” problem: What are governments doing about it?’, September 2018 – https://www.ikigailaw.com/the_fake_news_problem/

[11] Joint Declaration on Freedom of Expression and “Fake News”, Disinformation and Propaganda: adopted on 3^rd March 2017 – https://www.osce.org/fom/302796?download=true

[12] Supra Note 9.  See Page 2

[13]    Angelopoulos Christina and Smet Stijn, ‘Notice-and-fair-balance: how to reach a compromise between fundamental rights in European intermediary liability’, 2016 [8(2)] Journal of Media Law, 266-301. Page 2

[14] Act to Improve Enforcement of the Law in Social Networks (Network Enforcement Act) https://www.bmjv.de/SharedDocs/Gesetzgebungsverfahren/Dokumente/NetzDG_engl.pdf%3Bjsessionid=70F6F3D932FEB908B0834ED8488E0D01.2_cid324?__blob=publicationFile&v=2

[15] Law Proposition on the fight against the manipulation of information. http://www.assemblee-nationale.fr/15/ta/tap0190.pdf

[16] Stephan Lewandowsky and Ullrich K. H. Ecker, ‘Misinformation and Its Correction: Continued Influence and Successful Debiasing’ – https://dornsife.usc.edu/assets/sites/780/docs/12_pspi_lewandowsky_et_al_misinformation.pdf