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THE FAKE NEWS CONUNDRUM: A TUSSLE BETWEEN HUMAN COSTS AND HUMAN RIGHTS


Introduction

The Covid-19 pandemic is one of the worst disasters to have affected mankind, and it continues to claim lives and infect millions more. As the infection spreads rapidly across the globe, the spread of fake news regarding the disease is happening at an even faster pace. Fake news has a grave impact on society at large, the public, in general, is extremely susceptible to any kind of news in terms of reaction. India’s social media was already rife with fake news, conspiracy theories and doctored videos before the pandemic reached the country, and such pieces of misinformation took off as the cases started spiking throughout the country. Moreover, any piece of information is mostly treated as pure truth and hardly ever fact-checked by the public. This can be explained by a simple example of a local lingo used in the Indian context of “WhatsApp University”, a term used to denote the series of fake news broadcasted through the medium of WhatsApp which is considered by the public to be actual news. The article aims to discuss the human costs of such misinformation in India, and how broad fake news legislation might not be the perfect solution to this issue.

The Human Costs of Fake News

The spread of fake news has ramifications that incur severe human costs. The World Economic Forum expressed that fake news has the potential to cause digital wildfires which can have huge economic and political costs. One such example was the misinformation alleging that consuming non-vegetarian food, particularly chicken could infect the consumer with the virus. The economic cost of this was enormous as people stopped consuming meat altogether, leading to a major setback to the poultry industry. Poultry farmers started culling chickens worth crores of rupees, while others set them free. The sales of maize took a major hit as a result of this since it goes into much of the feed for the chickens. Nationwide, the damage this caused to the poultry industry is estimated to be around ₹2000 cr.

The most dangerous aspect of this misinformation was the demonization of an entire community, depicting them as the vectors of this infection. The Tablighi Jamaat congregation that was held in New Delhi’s Nizamuddin, sparked India’s religious tensions after it led to a sharp increase in positive cases across the country. The community was branded as “Corona Villains” after circulation hoax videos that presented them to be licking utensils to spread the virus deliberately. Videos of quarantined Jamaat members spitting and sneezing at the healthcare staff were manipulated to increase the communal tensions after the Citizenship Amendment Act (CAA) protests. This rift between the communities was widened when medical professionals were attacked at a Muslim locality in Indore. While certain people took to social media stating that this community does not deserve medical treatment for such behaviour, very few tried to research that the precursor to this attack was the misinformation that healthcare staff was picking up Muslim youths while testing and purposely injecting them with Covid-19 positive blood.

In India, where religion plays a key role in politics, political parties and individuals have tried every weapon in their arsenal to politicize the pandemic, even with claims that it was a manifestation of God’s wrath. These resulted in politicized social media forwards linking the virus and the CAA. This shows how fake news has been tarnishing India’s integrity, the impact of which has worsened during the pandemic. It has widened the discord between communities, weakening the social fabric and has led to communal violence. Given the large illiterate populations that highly prioritise religious and cultural beliefs, people have been manipulated into misdirecting issues and making them political by spreading propaganda, all of which has been increasing the human cost of this pandemic.

Inadequate Legal Framework in India

India is relying on interpretations of certain legislations due to the absence of a special law that regulates the dissemination of fake news. The Ministry of Electronics and Information Technology advised all social media platforms to circulate authentic information, and remove any piece of misinformation on account of being intermediaries under the Information Technology Act, 2000. The Ministry, through the Information and Technology (Intermediary Guidelines) Rules 2018 (IT Rules), further aims to counter the dissemination of fake news. Section 54 of the Disaster Management Act, 2005 (DMA) is invoked by central and state governments, since the Information Technology (Amendment) Act, 2008 has no robust provisions to deal with the circulation of such misinformation. Section 54 of the DMA along with Section 505(1)(b) of the Indian Penal Code are being used to penalize those who circulate false information. Both the sections deal with circulation of false alarms that lead to widespread panic, with the latter having a wider ambit and stricter punishments.

However, these legislations are not effective in regulating the spread of fake news as most instances get filtered down while putting people under the scope of the law. The ambit and impact of fake news are beyond that of the DMA as Section 54 deals with “circulation of false alarm or warning as to the severity or magnitude, leading to panic.” While the IPC is more extensive, it does not penalise making such statements in good faith or under the belief of them being true. Moreover, these legislations rely heavily on the role of intermediaries in controlling the dissemination, rather than having an effective and direct grip on it.

Constitutional Validity of a Potential Fake News Legislation and Human Rights Concerns

A fake news regulation should pass the test of constitutional validity, and should not violate the basic human rights of freedom of speech and expression. While it sounds easy, the enactment and implementation of such legislation is tricky given the broad nature of the term “fake news”. Contemporary legislations have faced serious criticism in this regard.

Singapore enacted The Protection from Online Falsehoods and Manipulation Act (POFMA) to criminalize the dissemination of fake news. The Act was criticised since it did not define “in the public interest”, a lacuna which gave disproportionate powers to the government. Brazil’s Fake News bill was cruised for threatening human rights and hampering internet freedom. The bill inter alia forces Social Media and Private Messaging Companies to collect legal identification of all users, which risks data privacy by breaking end-to-end encryption. Such legislation can be abused by governments if the provisions are defined in broad and vague terms. This can lead to the violation of constitutionally protected speeches like dissent and give unrestricted power to governments similar to