Fake news and the legal angle

Fake news” is the catch phrase of the day! Fake news is a genus of “yellow” or “synthetic” journalism that encapsulates deliberate disinformation or hoaxes spread via conventional print and broadcast news media or online social media.  In February, 2018, the BBC defined fake news as “false information distributed deliberately, usually for political or commercial purposes”. Fake news, although a term of fairly recent origin, has prevailed since time immemorial. In the 13th century BC, the mighty Egyptian Pharaoh Ramesses II, popularly known as “Ramesses the Great” consciously spread fake news portraying the Battle of Kadesh, the earliest pitched battle fought in human history in 1274 BC, as a decisive victory for the Egyptians against the Hittites of Anatolia (modern day Turkey) in the city of Kadesh, a bustling trading centre in the ancient world. And on 26th March, 1475, Easter Sunday, a Franciscan preacher, Bernardino da Feltre, gave a series of sermons in Trent, Italy, claiming that the Jewish community had murdered a two-and-a-half-year-old Christian infant named Simonin and had drained his blood and consumed it to celebrate Passover, a major Jewish holiday that commemorates the exodus of the Israelites from slavery in Egypt. The fake news spread like wild fire and the Prince-Bishop of Trent Johannes IV Hinderbach ordered the city’s entire Jewish population to be forthwith arrested and tortured. Lamentably, fifteen of them were pronounced guilty and mercilessly burned at the stake! Pope Sixtus IV (who patronised the construction of the Sistine Chapel and the creation of the Vatican Apostolic Library!), made a heroic but abortive effort to stamp out the news which had spiralled out of control. The popular fervency boosting these anti-semitic “blood libel” legends made it nigh impossible for the papacy to take any punitive action against Hinderbach, who eventually went on to defiantly canonize “Little Martyr Simon” as a Saint, crediting him with a hundred miracles. The Nazis scrupulously resurrected the fake news set afloat in Trent as a malicious “Goebbelsian” propaganda weapon against the Jews in the spine chilling Holocaust.
Fake news in India has had a deleterious effect on our nation’s unity and integrity leading to multiple episodes of violence between castes and religions and has interfered with robust public policies. It has often spread through the smartphone instant messenger WhatsApp, having presently 487 million monthly active users in the country. The Supreme Court of India has taken a very grave view of the indiscriminate spread of fake news. On 17th July, 2018, a panel headed by the former Chief Justice of India Dipak Misra recommended that Parliament pass a new “special law” that would instil fear in would-be attackers and demanded that the police take immediate steps to investigate and curb the dissemination of “irresponsible and explosive” messages and videos that could incite mob violence and lynchings. On 14th November,2019, the Supreme Court summarily rejected a batch of review petitions in the contentious Rafale fighter jets matter. What has now most regrettably come to light is that the wholly unwarranted stand of the opposition led by the Indian National Congress Party under the stewardship of its then President Rahul Gandhi (who is presently spearheading a highly publicised nationwide political marathon!), was singularly influenced by deviously contrived fake news (presumably not of Gandhi’s own making!) calculated to disparage the Prime Minister of India and his Government. Such fake news not only induced Gandhi to make the highly defamatory remark “Chowkidar Chor Hai” but perfidiously ascribe such remark to the Supreme Court. Significantly, on 8th May, 2019, Gandhi gracefully tendered an unconditional apology to the Supreme Court for wrongfully attributing the offending phrase to the court and the court took specific note of his apology whilst dropping the contempt proceedings against him in the Rafale case on 14th November, 2019. The Supreme Court on 2nd September,2021, expressed grave concern over the proliferation of fake news in the absence of a regulatory mechanism and asked the Centre if it was “really serious” about fixing accountability on web portals and other media to check the menace.
In a recent study published in the peer-reviewed academic journal American Behavioral Scientist, researchers from the Pennsylvania State University in the US, including Professor S.Shyam Sundar, have identified seven types of fake news, an advance that could help better spot misinformation, and create technology that can automatically detect misleading content. They have narrowed down myriad examples of fake news to seven basic categories, namely false news, polarised content, satire, misreporting, commentary, persuasive information and citizen journalism.
The Government has taken a serious note of rising incidences of fake news on social media and digital platforms and has decided to set up a fact-checking module under the Ministry of Information & Broadcasting to identify such areas and take corrective action. The government’s FACT Check module is tasked to work on 4 principles of find, assess, create and target which will involve round the clock monitoring of online news sources and social media posts.
The social media platforms cannot remain innocent bystanders to the spread of “irresponsible and explosive messages” or evade their responsibilities. The focus must not just be on messaging platforms but also on search engines like Google. Intermediaries and search engines should do much more and publish what they are doing to counter the irrepressible spread of fake news. On 16th July, 2022, the Union Information & Broadcasting Minister Anurag Thakur urged the Government’s communicators to be agile and adaptable to take up challenges such as fake news. And on 26th September, 2022, Thakur revealed that the Government had blocked 45 videos and 10 YouTube channels for airing fake news with intent to spread religious hatred. The Minister asserted that these channels were working against the interest of the country by spreading fake news to spoil India’s relationship with friendly nations.
As our economy and lives digitise increasingly, there is an imperative need for greater understanding of the do’s and don’ts and the laws governing the conduct of participants. This needs to be carried out by the apps and platforms in conjunction with the Government to usher in a “realistic world”. Platforms and intermediaries need to comply with data access demands legally made by our security agencies. Our law enforcement agencies need to detect and prosecute spam farms and those who are responsible for spreading content that foments crimes and hatred. The cyberspace is replete with criminals and lawbreakers. To make matters worse, bots without human supervision are capable of effortlessly spreading fake news to millions of people around the world. Our enforcement of laws needs to become more tenacious and the prosecution of even a few offenders would send a stern message of deterrence to others. Technology is meant for the public good. But then technology is a double-edged sword and the celebrated Norwegian historian and political scientist Christian Lous Lange aptly observed, “Technology is a useful servant but a dangerous master.” So when technology is used with the intention to harm, the Government and intermediaries must close ranks and act unitedly to ensure that our country, our democracy and our way of life do not fall a hapless prey to pernicious ill winds that blow no good.

BRIEF NOTE ON THE AUTHOR
The author is an internationally reputed senior lawyer practising in the Supreme Court of India and various High Courts and Tribunals in India. He has been closely associated with some of the topmost Indian corporates like Tata Sons Ltd., Tata Consultancy Services Lt., Tata Steel Ltd., Reliance Industries Ltd., ITC Ltd., ICI India Ltd. and Hindustan Unilever Ltd. as a lawyer and advisor. He addressed a select gathering of MPs and other eminent persons in the House of Lords in February,2009 and was awarded the prestigious “Ambassador of Peace Award”. In April,2009, he was also invited to the House of Commons. He was also invited by Chatham House and by the Universal Peace Federation in London several times. He is an avid debater, public speaker, writer, broadcaster, telecaster, artist, painter, sculptor, music critic and filmmaker. He is also an indefatigable lover of western classical music and has one of the largest private collections of western classical music in India.

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