Author : Rheea Lall, Student at Presidency University, Bengaluru
INTRODUCTION
“The most salient danger associated with fake news is the fact that it devalues and suppresses voices of expertise, authoritative institutions, all of which undermines society’s ability to engage in rational discourse based upon shared facts.”[1]
The network and exchange of network are now unrestricted. Thanks to social media platforms and digital content creation technologies, now everyone is able to create information that spread ‘noise’ that seems to be credible and is very much similar to the anticipated real news.
Yellow Journalism or fake news, also called ‘junk news’, pseudo-news, hoax news was defined by Prof. Zonathan Zittrain( Co- Founder of Berkman Klein Centre, Harvard) based on “the intent of one spreading it ‘as something which is wilfully false and the person saying it or presenting it knows it to be untrue or that person is indifferent to it being true or false.’[2]
Human beings believe it to be reasonable to promote something what they see around them and place their confidence in that news, start re-tweeting or sharing information which alters how that content is perceived by subsequent content consumers. There is a heuristic most of us use to determine what to d, think, say, and buy: the principle of social proof. To learn what is correct, we look at what other people are doing.[3] In a similar manner, we facilitate the spread of fake news. Historically, this response may have help to avoid problems but in today’s digital world, it makes us vulnerable.
“About 51 percent of the survey respondents agreed that they are concerned when facts were spun or twisted to push a particular agenda through fake news media. Fake news and disinformation through social media has been a pressing issue in many countries across the world today. In India as well, this concern was reflected in good measure with a majority of the respondents stating they were worried about fake news being a problem due to various reasons.”[4]
RELEVANT PROVISIONS OF IT ACT, 2000
The Information Technology Act 2000, which was notified on 17th Oct, 2000 regulates “electronic commerce and provides for certain cybercrimes, contains a provision (section 66A) prohibiting the dissemination of information that a person be cognizant of it being bogus by means of a computer resource or a communication device for the intention resulting in annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, but this provision has been struck down as unconstitutional by the Supreme Court of India”. The Information Technology (Intermediaries Guidelines)[5] which were released in 2011 to authorize limited immunity to companies providing social media and other platforms on internet where a third party posts illegal content and also outlines the due diligence to be observed by intermediary companies for removing such content.
The draft of 2018 was aimed to curtail the misuse of social media platforms and increase the accountability of companies providing such platforms. Though, the IT Act of 2000 ensured the proper use of online platforms but after 66A being removed the act was only focused to give a fillip to electronic transactions, to provide legal recognition for e-commerce and e-transactions, to prevent computer based crimes, to facilitate e-governance and ensure security practices and procedures
“The social network platforms are required to follow due diligence as provided in Section 79 of the Information Technology Act, 2000, and the Rules notified therein, subject to the import of Article 19(2) of the Constitution and ensure that their platforms are not used to commit and provoke terrorism, extremism, violence and crime” –The Ministry of Electronics and Information.
The IT Act, 2000 gives benefit to the Social Media Platforms by enabling them to be free from liability if any fake news is shared through their platform. As the Government has always been on back foot in cases of fake news and unable to take action against these platforms primarily due to Section 79 of the Information Technology Act, 2000 which takes care of the ‘Exemption of Liability of Intermediaries’. Under the IT Act, SMPs are regarded as Intermediaries and so far as they don’t start to initiate the concerned fake news which got circulated through their platform. Government has been able to successfully control these SMPs through various other provisions of the IT Act to an extent of blocking them in emergency situations by the draft of 2018.
Among various sections considered some of the primary provisions discussed are:
- Section 69 of the IT Act provides power to the authorities to issue directions for interception or monitoring or decryption of data to ensure it being satisfactory on the grounds of public order and security of the nation.
- Section 69A of the IT Act empowers centre to block access of any information to public through public resource on grounds of public order and security of the state.
- Section 85 of the IT Act speaks of liability of a company providing platform for dispersion of data over committing any offence or contravening any provisions of the Act.
SECTION 66A OF IT ACT, 2000
The section 66A of the IT act reads as “(a) any kind of offensive information or has something intimidating or threatening; (b) the sender has knowledge of information being false and can cause annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will; (c) or any electronic message to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable for a term which may extent up to 3 years and with fine.” This was considered to be a draconian law and was ruled unconstitutional in Hon’ble Supreme Court.[6]
In Shreya Singhal vs. Union of India[7], upholding freedom of expression, the Supreme Court has struck down Section 66A of the amended Indian Information Technology Act, 2000.
The Hon’ble Supreme Court striking down the validity of Section 66A of the IT Act held, “We, therefore, hold that the Section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth.”
ANTI-FAKE NEWS LAWS
· MALAYSIA’S ANTI FAKE NEWS ACT REPEALED…
Unlike India, Malaysia had anti-fake news law till Oct 9, 2019. This anti-fake news law was passed in April 2018 in Malaysia and as per the law “Any person who, by any means, maliciously creates, offers, publishes, prints, distributes, circulates or disseminates any fake news or publication containing fake news commits an offence and shall, on conviction, be liable to a fine not exceeding five hundred thousand ringgit [about US$120,000] or to imprisonment for a term not exceeding six years or to both, and in the case of a continuing offence, to a further fine not exceeding three thousand ringgit [about US$715] for every day during which the offence continues after conviction.” This law faced a lot of criticism from the international community.”
Deputy Minister in the Prime Minister’s Department Mohamed Hanipa Maidin after decriminalising and scrapping the anti-fake news law said that “the repeal was in accordance with the government’s commitment to abolish draconian laws and ensure the media has the freedom to ‘check and balance’ the administration.”
But in substitution to previous law “the Malaysian Communications and Multimedia Commission (MCMC), as a converged regulator, have established a special department[8] dealing with information security and network reliability, the integrity of communications and critical communication infrastructure.[9] A similar approach is also taken by Communications Commission (KCC) [10]where it is also responsible for the protection of Internet users from harmful or illegal content.” In India no such stringent regulation is in place though laws are sufficient to ensure freedom of speech.
· FRANCE FAKE NEWS LAWS…
A strong anti-fake news law was passed in France in 2018, which aimed at immediate removal of fake news during election campaign. Also, it allows their national broadcasting agency to render the authority to suspend television channels “controlled by a foreign state or under the influence” of that state if they “deliberately disseminate false information likely to affect the sincerity of the ballot.” When Compared to India the manipulation of data is checked by the ECI of India which is autonomous constitutional body.
· SINGAPORE
Singapore has law to prevent commutation and broadcasting of any fake news or false statement of fact to “suppress support for and counteract the effects of such communication, to safeguard against the use of online platforms for such communication and for information manipulation, to enable measures to be taken to enhance transparency of online political advertisements, and for related matters”, this Act received assent from their president on 3rd June, 2019.
In Singapore, it is illegal to spread false statement and such act can be deemed prejudicial to Singapore’s security, public safety, “public tranquillity,” or to the “friendly relations of Singapore with other countries,” among numerous other topics under the protection from Online Falsehoods and Manipulation Bill. Under this law the power to decide something deemed fake news confers upon government ministers. IT companies which provided platforms for providing information have opposed this law.
CONCLUSION
Social media, Blogs, and other online platforms which are used to spread information have power to affect our society and bring change. After losing the elections in America, Hillary Clinton stated that fake news can have real world consequences” and condoned fake news as “a danger that must be addressed and addressed quickly” after campaign of republicans on social media of spreading an opinion.
In developed countries “awareness and knowledge among the people regarding cyber and IT law is much better than the developing countries also cyber security law is too tight and brings restrictions to foreign companies doing business in the countries which protects the countries and controls the cyber crime rates.” On the other hand India’s IT act (amended)2008 provides many reliefs regarding cyber crimes to the common people and is now making many efforts to make the country efficient to provide better services and protection.
FOOTNOTES
[1]Fighting Fake News (Workshop report), hosted by The Information Society Project The Floyd Abrams Institute for Freedom of Expression, Yale Law School.
[2] Fake news is giving reality a run for its money, https://news.harvard.edu/gazette/story/2017/03/harvard-panelists-discuss-future-of-journalism-in-fake-news-world/.
[3] Rob Henderson, The Science Behind Why People Follow the Crowd, https://www.psychologytoday.com/us/blog/after-service/201705/the-science-behind-why-people-follow-the-crowd
[4] https://www.statista.com/statistics/1027070/india-responsibility-to-solve-misinformation-problem/
[5] The Information Technology, [Intermediaries Guidelines (Amendment) Rules], 2018, https://meity.gov.in/writereaddata/files/Draft_Intermediary_Amendment_24122018.pdf
[6] https://www.thehindu.com/opinion/lead/the-judgment-that-silenced-section-66a/article7032656.ece
[7] AIR 2015 SC 1523.
[8] Information and network security (INS).
[9] See: MCMC, What do we Do. Information Network Security, available at: www.skmm.gov.my/what_we_do/ins/feb_06.asp.
[10] Korea Communications Commission: Important Issues, available at: http://eng.kcc.go.kr.