TRUTH VS. LIES: REGULATING FAKE NEWS IN THE DIGITAL AGE
Srishti Singh, Student, Campus Law Centre, Faculty of Law, University of Delhi
In today’s digital age, the spread of fake news has become a global menace, influencing elections, inciting violence, and eroding public trust in institutions. Fake news refers to intentionally false or misleading information designed to deceive and manipulate. Its rapid dissemination, fuelled by the proliferation of social media platforms, poses serious challenges to democracies worldwide. In India, with over 600 million active internet users, the impact of fake news is amplified, often leading to real-world consequences, from mob lynchings to public panic during crises like the COVID-19 pandemic.
As social media platforms like Meta and X (formerly Twitter) implement controversial policies like user-driven content moderation, the need for a robust legal framework to combat misinformation becomes paramount. This article explores the current legal landscape for tackling fake news in India, the challenges of balancing regulation with free speech, and lessons from global efforts.
LEGAL PROVISIONS IN INDIA
There is no specific law dedicated to tackling spread of fake news in India. However, various provisions in the existing statutes are used time to stop the spread of misinformation.
Bharatiya Nyaya Sanhita: Provisions within the code include Section 296 (IPC:153A) which penalizes promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., or acts prejudicial to maintaining harmony. Section 299 (IPC:295A) deals with deliberate and malicious acts intended to outrage religious feelings. Section 353(1)(b) (IPC:505(1)(b)) criminalizes the publication or circulation of any statement, rumour, or report that causes fear or alarm among the public. Sections 356 (IPC: 499 and 500) covers defamation caused by the publication of false information.
Information Technology Act, 2000 (IT Act): Section 66D punishes cheating by personation using computer resources, which can include spreading fake news. Section 69A empowers the government to block access to online information in the interest of sovereignty, security, or public order. Section 79 mandates intermediaries (social media platforms) to ensure compliance with rules and regulations, particularly regarding unlawful content. IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 impose obligations on intermediaries, such as social media platforms, to ensure proactive monitoring and removal of unlawful content, including fake news. Digital media publishers are required to follow a code of ethics.
During times of a disaster, Section 54 of Disaster Management Act, 2005 penalizes spreading false warnings or alarms during disasters that lead to panic. This was invoked during the COVID-19 pandemic against fake news dissemination. The impact fake news can have on the general public, especially during times of crises was clearly visible during the. Covid-19 pandemic. While hearing of a writ petition, Alakh Alok Srivastava versus Union of India, where advocates had a filed a petition with respect to the management of the migrant crises during the Covid-19 lockdown, the Supreme Court had observed that,
“The migration of large number of labourers working in cities was triggered by panic created by fake news that the lockdown would continue for more than three months. Such panic driven migration has caused untold suffering to those who believed and acted on such news. In fact, some lost their lives in the process.”
Issues in Tackling Fake News
A major concern is how to define and identify fake news. There is no clear definition of ‘fake news’ in any statute. The meaning of the term is taken in general speaking sense which renders it liable to be misused. Furthermore, with increasing influence of AI, identification of the same also becomes a challenge. Tools like fact-checking algorithms or collaborations with tech companies can help in addressing this issue.
One of the most conspicuous issues which emerges when talking of countering fake news is the impact it has on Freedom Speech and Expression guaranteed under Article 19(1)(a) of the Indian Constitution. This was the main issue in contention in Kunal Kamra versus Union of India before the Bombay High Court where validity of Rule 3(1)(b)(v) of the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 was challenged. The said provision provided for a Fact Check Unit (FCU) to be set up by the Central Government. The FCU was held to be in violation of Article 14 as the government was itself acting as the final arbiter in its own cause. The judgement further stated that expressions “vague, or false or misleading” used in the impugned rule were vague and overboard which rendered them liable to be struck down. A big concern here is that the vagueness of these terms can have a chilling effect on the freedom of speech.
In Bennett Coleman & Co. Versus Union of India, the importance of freedom of press was greatly emphasised calling it ‘Ark of the Covenant of Democracy’ while in Romesh Thapar Versus Union on India, it was emphasised that the legislative authority to abridge right to free speech and expression was very narrow and had stringent limitations. If the legislature wished to curtail the right, the provision is to be strictly within the bounds of clause (2) of Article 19. These views were further reiterated in Shreya Singhal Versus Union of India, which struck down Section 66A of the IT Act, 2000.
All this points to the need to maintain a balance between the need to tackle fake news and protect the right to speech and expression. Any action that is taken should be within constitutional boundaries and ensure that it has no chilling effects on the rights under Article 19(1)(a).
Global Examples of Tackling Fake News
While countries like Japan and Sweden reply on existing Civil, Criminal and Administrative laws to tackle misinformation, there are various other models that have been adopted by other countries.
Countries like China, Germany and Malaysia have enacted legislation that imposes sanctions on social media networks that spread false news, usually imposing fines and ordering the removal of information identified as false. Another option, as seen in countries like UK and Argentina is to engage election authorities and digital platforms to secure a well-informed electorate, either by identifying and blocking fake news, providing fact-checking resources for the general public, or through the mass publication of “real” news during election season and beyond.
Some countries like Sweden and Kenya are also addressing the issue in a more general way by educating citizens about the dangers of fake news. Sweden starts at a young age, having enlisted a famous cartoon character to teach children about the dangers of fake news through a cartoon strip that illustrates what happens to the bear’s super-strength when false rumours are circulated about him.
Practical Implications
The prevalence of fake news influences public opinion and behaviours, often leading to severe consequences such as misinformation during crises, election manipulation, and societal polarization. Governments face difficulties in enacting effective measures without infringing on constitutional rights such as free speech. The need for precise definitions and targeted regulations is critical to avoid misuse and ensure enforcement aligns with democratic principles.
The integration of advanced tools, such as AI-driven fact-checking algorithms, can assist in detecting and curbing misinformation. However, as AI evolves, the potential for creating even more convincing fake news, such as deepfakes, poses additional challenges. Educating citizens on recognizing fake news is vital for empowering individuals to critically evaluate the information they consume.
Conclusion
The battle against fake news is a delicate one, requiring a nuanced approach that balances the need to regulate misinformation with the fundamental right to free speech. As India navigates this challenge, the legal framework must evolve to address emerging threats such as AI-generated content and the rapid spread of false narratives on social media. At the same time, vague definitions and overbroad regulations risk chilling legitimate discourse, undermining the democratic values they aim to protect.
Learning from global practices, India should adopt a holistic strategy that combines legal reforms, independent regulatory mechanisms, and public education to foster a culture of critical thinking and responsible information sharing. Only through collaborative efforts between governments, platforms, and citizens can we ensure that the fight against fake news strengthens democracy rather than stifling it.