The 2016 USA presidential elections is a crucial event in the modern political history. It showed that elections are not just fought on the ground but also from the virtual world. The alleged crucial tool in that election was fake news. That election in one of largest digitally literate countries has warned about what is yet to come in other parts of the world, in the countries which have comparatively a low digital literacy. The menace of fake news has only increased across the globe ever since.
In countries like India, fake news is not just used to reap political benefits but also to flare up communal tensions and in a few rare cases just as a fun by few misguided elements. As the law fails to keep up with the pace of technological advancements — we do not have a concrete law to effectively curb the menace of fake news. The limited legal options available to curb the menace of fake news often led the Indian officials to resort to internet shutdowns as an effective way to control the flared up human emotions. It is estimated that over 16,000 hours of Internet shutdowns cost India over $3 billion in the past five years.
The Existing Legal Framework:
The Information Technology Act (‘IT Act’) enacted in the year 2000 is a special law aimed to address the needs of information technology advancements. However, the law was amended only once in the past 18 years i.e., in the year 2008 and doesn’t effectively address the recent rapid technological advancements. While the Indian Penal Code (‘IPC’) enacted in the year 1860 has provisions to curb hate speech and incitement which can be used to punish the offenders of fake news.
To understand who is liable for dissemination of fake news, it is pertinent to note the elements in the spread of fake news through an online medium: i) the Content Creator, the person who actually creates the fake content. ii) the Content Forwarder, who shares the fake content and iii) the Internet Platforms. While prime facie malafide intentions can be established against the Content Creator, the Content Forwarders are often merely unsuspecting users who believe in the veracity of the content received.
The people spreading fake news viz., the Content Creator and the Content Forwarder are generally punished under Sections 124A, 153A, 153B, 295A, 500, and 505 of the Indian Penal Code:
- Section 124A of the IPC deals with punishment for any form of speech as an act of sedition when it is aimed against the State.
- Section 153A punishes the offenses related to promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.
- Section 153B of the IPC safeguards the interests of “class of persons” and “national integration” by providing punishment against imputations and assertions prejudicial to national integration.
- Section 295A deals with actions that are intended to outrage religious feelings of any class by insulting its religion or religious beliefs.
- Section 500 deals with punishment for defamation when the information is aimed at tarnishing the reputation of a person.
- Section 505 of the IPC deals with spreading of false and mischievous news intended to upset the public tranquility.
Punishments under the provisions of IPC range from an imprisonment of two years to five years, or fine, or both. Under the Section 67 of IT Act, spreading of fake news which is lascivious is punishable with a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to ten years and also with fine which may extend to two lakh rupees. Section 67A of IT Act has similar provision for punishing transmission of material containing sexually explicit act.
Online Platforms & The Safe Harbour Shelter:
Following industry uproar, after the Bazee.com fiasco, the IT Act was amended in the year 2008 to provide shelter to intermediary internet platforms from the actions taken by users without the interference of such internet marketing platforms. Under section 79 of the IT Act, an intermediary is someone i) who does not select the content, ii) does not modify the content, iii) does not select the viewer of the content, iv) nor does it select the recipient of the content. If the platform satisfies these four conditions it is an intermediary on the Internet and can take the defense of safe harbor principle to absolve itself from the liability. Internet platforms from Facebook to Pinterest, Twitter to WhatsApp clearly fall within the ambit of safe harbor protection available to intermediaries. However, merely being just an intermediary does not absolve the intermediary from liability.
Under the Information Technology (Intermediaries Guidelines) Rules 2011 (‘Intermediary Rules’) the intermediary shall have to remove any objectionable content within 36 hours from its servers if the objectionable content is brought to the notice of the intermediary. Failure to comply with Intermediary Rules can make the intermediary be liable as the content provider. While the Intermediary Rules specify a grievance redressal officer to be appointed, the location of such officer is not specified. Taking benefit of this ambiguity, the grievance redressal officers of several online intermediary platforms are often located outside India. WhatsApp, the leading messaging platform until recently has no representative in India. The Facebook owned messaging platform was forced to appoint a grievance redressal officer located in India in the last week of September.
At the outset, the Indian laws seem to be strong enough to tackle the menace of fake news. However, so far the penal provisions provided under IPC or under the IT Act did not act as a deterrence to stop the menace of fake news. The government’s plan to remove journalist accreditation who spread fake news received much uproar from the industry. The issue of regulating fake news involves the sensitive issue of regulating freedom of speech and consumer data privacy — as in the WhatsApp encryption saga and should be dealt with utmost care.
About the Author:
Krishna KP is a recent law graduate from Government Law College, Mumbai. A tech enthusiast, he wishes to contribute to the intersection of law and technology. His areas of interest include data privacy regulations, telecom and information technology laws.