Government and governance, Law, Science and technology, Arts, culture & society | Asia, South Asia

5 July 2017

While fake news is not a new phenomenon, its potential for harm is greater than ever. Tackling the issue in India will require a collaborative approach to law and policy, Nakul Nayak writes.

Early last November, WhatsApp messages were being forwarded thick and fast about the infusion of GPS nanochips in India’s new high-value currency notes. Prime Minister Narendra Modi had just announced the demonetisation of extant notes and the introduction of new ones. A major Hindi news channel dedicated a segment avowing the technological virtues of this latest anti-corruption drive of the Government.

As it turned out, the claims were false, and the Reserve Bank of India was forced to issue a clarification dispelling the rumour. This was yet another, albeit bizarre, instance of the ubiquitous circulation of false information that the public eventually believes, facilitated in no small part by rubber stamp approval of legacy media.

The rapid increase in fake news has captured much of the world’s attention. Policymakers especially find this problematic; if we cannot agree to a set of basic facts, or identify a problem as a problem, how can we ever address it?

Fake news is not a new phenomenon. It has existed since time immemorial in various forms. What has changed today is its gravity and potential for harm.

With the advent of the Internet and the empowerment of millions of voices to be heard universally at the click of a button, the possibilities of reshaping narratives through distorted facts are endless. Yesterday’s rumours, propaganda, disinformation, and Yellow Journalism are today’s fake news, ‘non-objective information’ and ‘alternative facts’.

India and its citizens have been no less susceptible to the spread of fake news. And, unlike the example of high-tech bank notes, not all rumours are innocuous. Some have the potential to be deadly.

Recently, rumours on WhatsApp about strangers abducting children led to mob violence and the killing of seven men in the central Indian state of Jharkhand. The seven men were innocent passers-by and the rumours proved false.

Tackling fake news will require a coherent and collaborative approach to law and policy. At the most fundamental level, policymakers will have to arrive at a definition of “fake news” with a degree of exactitude. For that to happen, “news” itself must be defined.

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Currently, no Indian statutory enactment defines “news”. No definition of “fake news” can encompass every kind of misinformation.

Moreover, a distinction must be drawn between harmless propaganda on the one hand, and verifiable disinformation that has the likelihood of causing imminent social harm or irreparable damage to the reputation of an individual on the other. Protection for the former kind of speech provides the necessary “breathing space” for truth to emerge in political and social discourse, which is a major philosophical justification of free speech.

Precise standards for what constitutes “fake news” will also be required to draw a line in the sand, to eventually assign responsibility on internet platforms (if desired), and to allow the state to intervene when the line is breached.

While the Indian Government has not yet devised a comprehensive policy to tackle the growth of fake news, its methods in analogous fields are instructive. In times of communal tension, state governments respond to online hate speech, often laced with rumours and disinformation, in two distinct ways: by imposing Internet shutdowns in affected districts or even entire states, and by disseminating credible counter-speech.

As I have argued elsewhere, Internet shutdowns, whereby the Internet access of all citizens is suspended, is a disproportionate measure and affects even those who do not engage in rumour mongering. In contrast, counter-speech strategies, where authorities send credible messages to citizens to dispel rumours, have proved effective in the face of large-scale fake news.

At the same time, some state authorities are targeting WhatsApp and Facebook groups as sites of disinformation. In a study of Indian online news readership conducted in October 2015, 41 per cent of respondents identified social media as the source for their online news, and 56 per cent shared news stories with others.

With that in mind, state authorities in the politically sensitive state of Jammu and Kashmir have directed that all “WhatsApp news groups” must be registered with the government. Such government actions may entail claims of privacy violation and state surveillance.

Policies are further being devised in several states to instil responsibility on WhatsApp or Facebook group administrators for the posts of members of the group. While such actions are being taken to combat the spread of fake news, they unfairly apportion duties on group administrators and disincentivise group communications.

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In fact, the Delhi High Court recently refused to make a WhatsApp group administrator liable for defamatory statements made by members of the group. The Court likened group administrators to “manufacturer[s] of newsprint” and rightly pointed out that “[i]t is not as if without the Administrator’s approval of each of the statements, the statements cannot be posted by any of the members of the Group on the said platform.”

Next, and perhaps most contentious, is the role to be played by online platforms such as Facebook. Imposing any obligations on social media websites may lead to a regulatory shift in how we legally recognise these platforms.

Under India’s information technology laws, social media websites are categorised as “intermediaries”, which allows them to take advantage of safe-harbour provisions that exempt them from liability for content they do not initiate or modify.

Mandating social media websites to check fake news may render them incapable of claiming safe-harbour, thus disincentivising any action. Lawmakers will have to work around this dilemma since fake news often finds its point of first contact with a larger community in social media, which makes these platforms a crucial battleground in the fight against fake news.

Finally, it must be remembered that the deleterious effects of fake news only emerge when enough people believe in it. If the public, as a community of individuals, approach information as sceptical, critical agents and not as passive receptors, many rumours masquerading as news will automatically get rejected at their source.

Due to mass illiteracy, poor schooling, and easier access to unverified online sources, many Indians cannot differentiate between fact and fiction. This is a problem that in the long-term only quality education can address. In the meantime, the government and civil society would do well to initiate awareness campaigns about fake news and its potentially deadly consequences.

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