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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 the Chinese model. Such restrictions are violative of human rights instruments like Article 19 of the Universal Declaration of Human Rights and Article 19 of the International Covenant on Civil and Political Rights.

While fake news legislation isn’t inherently unconstitutional, the Indian government will have to present a very detailed definition of “fake news”, else it may violate Article 19(2) of the Constitution. The first step for India here is that censorship of information based on actual knowledge of a government notification under Rule 3(8) of IT Rules must be removed since it is in contravention of Shreya Singhal v. Union of India¸ where it was held that only the actual knowledge of a court order should apply to an intermediary. Furthermore, under this rule, upon issuance of government notification, the party is not given a chance to present its challenge, which is violative of procedural due process. Secondly, public policy measures in Europe and Singapore that make use of strategic communication at a national and regional level, have turned out to be more effective than legislation like POFMA.

Hence, India should create task forces that actively identify fake news in partnership with think tanks that publicly challenge falsehood and bolster social resilience against fake news. This will generate awareness in the public and inculcate the habit of fact-checking, rather than blindly following whatever is presented to them. The media should focus on debunking false information rather than increasing chaos by broadcasting unverified information.

Conclusion

In India, it seems as if community spread of rumours and misinformation is much quicker than the spread of the contagious virus, and the current legal framework lacks the potential to serve the purpose of tackling fake news. Fake news has posed several hurdles in our fight against this pandemic and has led to a lot of collateral damage. In most cases, these false alarms spread hatred rather than panic, which in turn manifests into racist and xenophobic behaviours.

It is clear that this infodemic has incurred serious human costs, but the solution to this should not be a violation of basic human rights. A framework needs to be put in place, but it should be in consonance with the essential freedoms of speech and expression. A policy-oriented approach will help strike the right balance, without tilting the scales too much on either side. Media literacy along with more fact-checking agencies will assist in combatting the dissemination of false information. While the government has the duty to not curb the human rights of the citizens, the latter has to make sure it does not spread false information and complicate the governments fight against the pandemic. Therefore, it is imperative that the two work in harmony to battle this crisis.

Disclaimer (Title Image)- The image has been used only for creative visualization and doesn't serve (or tries to serve) any other purpose.


The article has been written by Pranav Nayar and Kshitij Pal, both III year students at Rajiv Gandhi National University of Law, Punjab. Pranav has a keen interest in Public International Law and Human Rights Law. Kshitij is keenly interested in Criminal and Constitutional Laws. 

DISCLAIMER

Human Rights Law & Policy Review blog is strictly and entirely intended for educational purposes. The opinions expressed in any blog post are solely of the authors and do not reflect the views of any member of Human Rights Law & Policy Review. Since the website is open to public discussions and is updated every 12-15 hours, removal of any objectionable content might take up to a day. Any information provided does not constitute legal advice in any form.

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