Fake News v Free Speech: The right kind of balance

Fake News v Free Speech: The right kind of balance

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‘Threats to freedom of speech…though often trivial in isolation, are cumulative in effect and unless checked, lead to a general disrespect for the rights of the citizen.’- George Orwell

The news is always breaking! This ‘news’ may be from the past, present or even the future! It’s at our fingertips and is easily accessible to us through our smart-phones. Easy access to the news is part boon as we remain abreast of many facts which might help us in that one presentation or in a quiz contest or even last minute revision for same government exam. This means that we are connected very well in recent times. This used to be a burdensome task during the newspaper and pamphlet days. The Internet and social-media forum have changed that for the good!

But, then there is the bane part. And it is the bane part which presents to us complex problems. Easy access to news/facts does not always mean easy access of ‘genuine’ news/facts. What your Uncle or Aunt forwarded you through Whatsapp /Facebook/Instagram may not always be fact-checked by them and consequently even by you too. This easy access and easy ‘forwarding’ of news phenomena have created more problems to the extent of instigating criminal behaviour. It may range from bullying, defamation, blackmail and even more violent crimes. Lynching by the mob is a huge problem these days in India and in most of such cases, is started with some news about a fact or some person.  

Many suggestions are made to tackle misinformation and fake news. While making such suggestions one might even go to the extent of supporting unusual bans on access to social media and other internet platforms. Such is the increasing burden on law enforcement, especially in India. But, the fundamental question remains the same- How do we find that right kind of balance? A balance which should address the menace caused by such misinformation and also protect a citizen’s right to speak at the same time. After all, the laws should not be such which disrespect a citizen’s right to free speech and expression. Ultimately, such laws would affect freedom which is essential to any existing democracy in the world.

SPEECH AND NEWS-A PART OUR FREEDOM  

POSITION IN INDIA

‘Democracy is a Government by discussion.’- Laski

In any democratic country, citizens have certain freedoms. These freedoms may be absolute or restricted. Speech and access to unbiased and genuine news are part of this freedom. It is essential that this freedom is supported in a healthy democracy which wants to survive as a democracy in the first place. Hence, our Constitution-makers added this freedom to Chapter III of our Constitution. This means that it has been enshrined as a Fundamental Right which is inalienable to us citizens in India.  Under Article 19(1)(a)[i] of the Constitution of India, every citizen has the right to free speech and expression. CJ Patanjali Shastri observed in a case[ii] that,

‘Freedom of speech and of the press lay at the foundation of all democratic organizations, for without free political discussion on public education, so essential for the proper functioning of the process of popular Government, is possible. A freedom of such amplitude might involve risks of abuse. But the framers of the Constitution may well have reflected, with Madison who was ‘the leading spirit in the preparation of the First Amendment of the Federal Constitution’, that ‘it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits.’

J. Bhagwati[iii] also highlighted the importance of free speech and expression in society in the following words-

“Democracy is based essentially on free debate and open discussion, for that is the only corrective of government action in a democratic setup. If democracy means the government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his rights of making a choice, free & general discussion of public matters is absolutely essential.”

All these observations share the common viewpoint that in a democratic nation, the citizens have the freedom to speak, write or express themselves in any manner. This is required to strengthen people’s political rights, help in the development of people’s attitudes towards their polity and also express their displeasure where they are aggrieved by the polity’s actions.

Even in the case of Keshavananda, JJ. Hegde and Mukerjea had included ‘essential features of the individual freedoms secured to the citizens’ [iv]as the ‘basic feature’ of the Constitution of India.  

Restrictions on freedom of speech and expression

It is to be observed that this right is not absolute and subject to restrictions under Article 19(2)[v].  The grounds of restrictions have been provided- 1) Security of State, 2) Friendly relations with foreign states, 3) Public order, 4) Decency or morality, 5) Contempt of Court, 6) Defamation, 7)Incitement to an offence and 8)Sovereignty and integrity of India. It should be observed that all these grounds of restrictions need to have a sound reason to be applied to restrict this freedom. This means that blind curbing of speech or any kind of expression is not provided for under the Constitution and the same can be challenged in Courts.

PRESS AND ITS RIGHTS IN INDIA

Constitutional position

Press freedom has been an important aspect and has been discussed at length in several cases before the Supreme Court as well. The liberty of the press is not treated as a separate character under the freedom of speech and expression. Hence, no special privilege is attached to the press which is distinguished from the right of the ordinary citizens[vi]. Regarding the right of freedom of speech and right of the press being on an equal footing, Dr B. R. Ambedkar explained the position as follows: “The press (or the mass media) has no special rights which are not to be given to or which are not to be exercised by the citizen in his individual capacity. The editor or managers of the Press are all citizens and, therefore, when they choose to represent any newspapers, they are merely exercising their right of expression and in my judgment, no special mention is necessary of the freedom of the press at all.”[vii] This was further stated as the same by the Report submitted by the First Press Commission as well. It stated, “This freedom is stated in wide terms and includes not only freedom of speech which manifests itself by oral utterances, but freedom of expression, whether such expression is communicated by written word or printed matter. Thus, freedom of the press, particularly of newspapers and periodicals, is a species of which the freedom of expression is a genus. There can, therefore, be no doubt that freedom of the press is included in the fundamental right of the freedom of expression guaranteed to the citizens under Article 19(1) (a) of the Indian Constitution.”[viii]  Even though there is no special privilege, there are a plethora of cases which have clarified the various aspects related to freedom of speech in relation to the press. These are as follows:

1)  Pre-censorship of news or views declared as unconstitutional[ix];

2)  Ban on publication was held to be contrary to free speech[x];

3)  Freedom of circulation and propagation is included in free speech and expression[xi];

4)  Adverse actions of the government, for example- fixing the number of pages and size of the newspaper[xii], the volume of news and views[xiii] etc are unconstitutional.

Important Media laws in India

 A list of the existing statutory laws in India has been provided as under:

Official Secrets Act, 1923– It consolidates all laws relating to official secrets and deals with offences related to spying and wrongful communication of secret information. Section 3 of the Act provides punishment for acts which may prejudice public safety and state interests[xiv].

 Press and Registration of Books Act, 1867– This Act specify the details regarding the position of books, newspapers and magazines in the country. The printer of every newspaper is required to deliver to the State Government, free of charge, two copies of each issue of the newspaper as soon as it is published. Failure to do so is treated as an offence.

 Sea Customs Act, 1878– Under Section 8(c) of the Act, any kind of obscene book, pamphlets and any other kind of materials being brought into India through land or sea is penalized.

Contempt of Court Act, 1952– It provides a ground upon which reasonable restrictions can be applied. The Act divides contempt into civil and criminal contempt.  Civil contempt refers to the willful disobedience of an order of any court.  Criminal contempt includes any act or publication which: (i) ‘scandalises’ the court, or (ii) prejudices any judicial proceeding, or (iii) interferes with the administration of justice in any other manner.  ‘Scandalising the Court’ broadly refers to statements or publications which have the effect of undermining public confidence in the judiciary[xv]. 

Young Persons (Harmful Publications) Act, 1956– Material which glorifies crime and violence is penalized under the law.

 Parliamentary Proceedings Act, 1956Section 3 of the Act states that no person shall be liable to any proceedings, civil or criminal in any court, in respect of the publication, in a newspaper, of a substantially true report of any proceedings of either House of Parliament, unless the publication is proved to have made with malice.

Delivery of Books and Newspapers Act, 1954– Under this Act, there is a duty upon publishers to send one copy of each issue of newspaper as soon as it is published to each public library.

Copyright Act, 1957– Section 52 of this Act states that certain acts shall not constitute an infringement of copyright, such as fair use, fair quotation, bonafide abridgements etc.

Defence of India Act, 1962–  Section 3 (7) deals with the entire gamut of printing and publishing of any newspaper or book and the imposition of censorship on such publications.

Police Act, 1972– This Act penalizes any act which causes or is likely to cause disaffection toward the Government among the members of the police force or if any such act induces or attempts to induce any member of the police force to withhold his services or to commit a breach of discipline.

Drugs and Magic Remedies Act, 1954– This Act controls advertisements related to drugs and so-called magical remedies. In such cases, the penalty may range from 6 months imprisonment which may be extended up to 1 year in case of previous conviction. Fines may also be imposed as punishment.

Indian Penal Code, 1860– Offences like sedition (Section 124-A), obscenity, defamation (Sections 499, 500 and 501) etc. which provide for the penal provisions including imprisonment and fines  

Press Council of India Act, 1978- This establishes the Press Council of India and enumerates its members, objectives, powers etc. It provides for better journalistic standards and freedom of the press. The Council is composed of the Chairman and 28 members. The members range from journalists, editors of newspapers, persons who manage the newspaper businesses, persons having experience in the field of law, science, literature and educations, persons from the University Grants Commission, Sahitya Academy and also from the Houses of Parliament[xvi].

The Act enumerates the following objects and the functions of the Council under Section 13 of the Act as follows-

“(1) The objects of the Council shall be to preserve the freedom of the Press and to maintain and improve the standards of newspapers and news agencies in India.

(2) The Council may, in furtherance of its objects, perform the following functions, namely :

(a) to help newspapers and news agencies to maintain their independence;

(b) to build up a code of conduct for newspapers, news agencies and journalists in accordance with high professional standards;

(c) to ensure on the part of newspapers, news agencies and journalists, the maintenance of high standards of public taste and foster a due sense of both the rights and responsibilities of citizenship;

(d) to encourage the growth of a sense of responsibility and public service among all those engaged in the profession of journalism;

(e) to keep under review any development likely to restrict the supply and dissemination of news of public interest and importance;

(f) to keep under review cases of assistance received by any newspaper or news agency in India from any foreign source including such cases as are referred to it by the Central Government or are brought to its notice by an individual, association of persons or any other organization;

Provided that nothing in this clause shall preclude the Central Government from dealing with any case of assistance received by a newspaper or news agency in India from any foreign source in any other manner it thinks fit;

(g) to undertake studies of foreign newspapers, including those brought out by any embassy or other representative in India of a foreign State, their circulation and impact.

(h) To promote a proper functional relationship among all classes of persons engaged in the production or publication of newspapers or in news agencies.

(i)                 to concern itself with developments such as the concentration of or other aspects of ownership of newspapers and news agencies which may affect the independence of the Press;

(j) to undertake such studies as may be entrusted to the Council and to express its opinion in regard to any matter referred to it by the Central Government;

(k) to do such other acts as may be incidental or conducive to the discharge of the above functions

By perusing the above objectives and functions, the Press Council can make guidelines on the standards of news and journalism in India. These objectives and functions are worded in the widest and the vaguest means possible. It is still lacking any type of control over the field of fake news. It is to be noted that a notification[xvii] defining ‘fake news’ was withdrawn by the Press Council of India. This was due to the vague definition which went as follows- “Fake news means news, story, information, data and reports which is or are wholly or partly false.” Another reason was the recommendation of cancellation or suspension of a journalist’s accreditation on account of ‘gross fake news’. This notification can be seen as a half-hearted and half-understood reaction to the phenomenon of fake news. It would have curbed speech more than fake news if implemented in the recommended form.

FREE SPEECH AND CONSTITUTION OF OTHER COUNTRIES

In the present article, there is a brief explanation of free speech as a right contained in the Constitution of those countries which have made laws on fake news.

SINGAPORE- Free speech has been constitutionally guaranteed to all Singaporean citizens under Article 14(1) (a) of the Constitution of Singapore. Parliament by making a law can put restrictions on grounds-

Where the restrictions are designed to:

Protect the privileges of Parliament

Provide against any contempt of court, defamation or incitement to any offence.

Where Parliament considers that doing so is necessary or expedient in the interest of:

Singapore’s security

         Friendly relations with other countries

Public order

Morality

It can be observed that the Constitution of both the countries, India and Singapore are similar to the freedom of speech and expression. The restrictions on speech can be tested in courts as well. 

FRANCE: Under Article 1[xviii] of the Declaration of the Rights of Man, 1789 provides freedom and equal rights to all men. If social distinctions are to be made, they are to be made on the basis of social good. Further, under Article 11[xix] of the Declaration, freedom in the communication of ideas and opinions has been termed as the most precious right of the man.

The freedom of the press is contained in the Law on the Freedom of Press of 1881. This was passed on 29th July 1881. It defines the freedoms and the responsibilities of all the publishers and media in France. The limitations which have been specifically provided are as follows-

Defamation 

Slander

Incitement to terrorism 

Public justification of terrorism 

Public provocation to hatred

Disputing crimes of humanity

The responsibility is accorded in the following order under Chapter V[xx] of the Act-

  1. The directors of publications or editors, whatever their professions or their denominations, and, in the cases provided for in the second paragraph of article 6, of the co-directors of the publication;

      B.  In their absence, the authors;

      C.  In default of the authors, the printers;

      D.  Failing printers, sellers, distributors and posters

FAKE NEWS-THE NEWS ‘TAKE-OVER’

Why has ‘fake news’ or ‘manipulated information’ taken over everyone’s internet? How does its spread pose a challenge to the law and order of a diverse country like India? What have other nations done about? What will these laws ultimately tackle- the manipulation or the right itself? Some of these questions need to be analyzed to see whether laws can actually help in curbing the fake news. 

Common forms of fake news- It should be kept in mind that the name has gained popularity only recently. The forms have existed prior to this label getting famous. The 7 basic forms of ‘fake news’ can be enumerated as follows-

Satire or Parody: There is no intention to cause harm but has the potential to fool

Misleading Content: Misleading use of information to frame an issue or individual 

Imposter Content: When genuine sources are impersonated

Fabricated Content: New content is 100% false, designed to deceive or do harm

False Connection: When headlines, visuals or captions don’t support the content

False Context: When genuine content is shared with false contextual information

Manipulated Context: When genuine information or imagery is manipulated to deceive

The spread of fake news is fast- This is what makes fake news a big challenge. It is like a viral contagion. As internet penetration has increased in India, people have social media accounts on various platforms. This ease of accessibility to 24-hour content is good news to all. What is bad news though, is the limited awareness about fact-checking the content. Then comes the ‘trolls’ and the ‘bots’ which play a very important role in making the content instigates more effectively among the readers.

The content itself is evocative or provocative in nature-There are other ways which may be present in the content itself like- messages or comments ending with ‘Share with 10 others to become a lucky person’ or ‘Best award by UNESCO’ etc. Some content may portray exaggeration like ‘threat posed by Rohingya Muslims to India’s integrity’ or cropped videos of various politicians saying ‘inappropriate’ things. It thus plays with the readers’ sensibilities and tries to appeal to the biases and assumptions that the readers might have (this can happen where specific groups are made on the social media platforms). Emotions can be varied from presumptions about a particular community to nationalistic sentiments of the majority. A study[xxi] conducted did find such elements in the information being spread which ultimately led to offences like public lynching.

LAWS AND FAKE NEWS IN OTHER COUNTRIES

Singapore- It has enacted the Protection from Online Falsehoods and Manipulation Act, 2019. The Act aims to prevent electronic communication in Singapore of false statements of fact, suppression of support of such communication and enable measures for enhancement of transparency of online political advertisements. The purposes of the Act have been provided under Section 5 of the Act, 2019. If a person acts in or outside Singapore communicates statements which he/she believes to be a false statement of fact[xxii] and which may be prejudicial to Singapore’s interests or incite enmity, violence or may affect the elections in Singapore or diminish public confidence in the performance of any duty or function or in the exercise of any such powers by the Government or any other body which may be part of the Government then he/she can be punished for such communication. The same applies to any kind of ‘bot’ used to spread such information. The penalties vary from 50,000$ to 1 million $ (Singaporean). The Act also provides for powers to the Competent Authority[xxiii] which includes Ministers from the Government to pass ‘corrections’[xxiv] under the Act to content which they deem to see as ‘fake news’ in ‘public interest’. Under Part 3 of the Act, the government has the authority to issue a correction direction (a “Correction Direction”), a stop communication direction, and/or access blocking order.If a person refuses to comply with such a direction and the subject statement is being communicated in Singapore on an online location and end-users have accessed such online location, the Minister may direct the info-communications Media Development Authority to order internet access service providers to take reasonable steps to disable access by end-users in Singapore to the online location of the subject statement. Persons who are subject to a Part 3 Direction may appeal to the High Court against the Part 3 Direction[xxv]. However, before doing the same, they must first apply to the Minister who made the Part 3 Direction to vary or cancel the Part 3 Direction, and the Minister must have refused the application in whole or in part[xxvi].

France- In France, the new legislation seeks to provide certain guidelines to the internet operators which they have to observe during 3 months preceding their general elections. These are as follows-

‘- Provide users with “honest, clear and transparent information” about the identity and corporate address of anyone who paid to promote informational content related to a “debate of national interest”;

Provide users with “honest, clear and transparent information” about the use of personal data in the context of promoting content related to a “debate of national interest”;

– Make public the number of payments received for the promotion of informational content when these amounts are above a certain threshold.’[xxvii]

It also provides powers to the judges to stop the dissemination of ‘fake news’ during this period. This is to be brought by the prosecutor or the candidate and has to be adjudicated within 48 hours of filing of the case. Regarding the television broadcasting services, the CSA, Superior Council on Audiovisual, can suspend the service (being controlled by foreign influences) during the elections. 

INDIA AND THE CURRENT POSITION ON FAKE NEWS

For now, there have only been deliberations over laws and fake news. The Government of India has wholly shifted the burden on social platforms like Whatsapp and Facebook. Whatsapp had recently limited the number of messages forwards and added the label ‘Forwarded’ to such messages. Despite such measures, the violence related to such forwards is a little startling. Hence, it becomes all the more important to debate the kind of steps the Government should take. Certain states like Rajasthan and Madhya Pradesh have enacted laws on mob lynching but, the penalties for the ones causing such violence through social media messages are missing. It may have been missing due to the fact that such penalizing of speech/expression may not sit well with the Constitutional values of freedom. Also, it becomes cumbersome if many people have forwarded the message which might have caused the lynching in the first place. Will intention/mens rea play an important role in such a case? What will be the burden of proof in such cases? There are some unanswered questions which need more research. Bans and censorship might not be good options either because it will mean ‘more overarching powers’ for the Government. This can be observed in Acts from France and Singapore. All the decisions are centralized in the hands of the Government. The Government becomes the ultimate decision-maker in such a case. This has the potential to damage democratic views as well as the people or opposition parties might find it more difficult to spread their dissenting opinions.

Certain important developments which have happened in India-

First, it is the development of fact-checking sites like Alt-News, Web-Qoof which help in refining the content that we read and share online.

Second, it is the awareness rising among people due to debates, discussions and more research into this phenomenon. This is an important development which also contributes to people’s consciousness in a polity and in society.

CONCLUSION

‘It’s either your way or my way. The correct way or the only way doesn’t exist.’- Mahatma Gandhi

It is important that if we want to preserve our democratic ideals and constitutional values we need to protect the freedom of speech and expression. This also includes the freedom of the press as it acts as the ‘Fourth Estate’ of Democracy.

With the rise in fake news, manipulated and wrong information, ruling governments will try to be stricter with expression and press freedom. But, this would only lead to more repression and more centralization of powers in the hands of the Governments as recent legislation in France and Singapore reveal.

The only answer then is more awareness among people and more responsible sharing on media platforms. Fact-check everything is the only answer to tackle manipulated information.

Fact-checking of quotes is equally important. There exist several misleading quotes which have been never given by famous personalities including the one quoted above. F.Nietzsche would not be happy at all with this!

[i] Article 19(1) in The Constitution Of India 1949-(1) All citizens shall have the right- (a) to freedom of speech and expression;…  

 [ii] Romesh Thappar v. the State of Madras, AIR 1950 SC 124.

[iii] Maneka Gandhi v. Union of India,

[iv] Keshavananda Bharati Sripadagalvaru & Ors. v. The state of Kerala, (1973) 4 SCC 225.

[v] Article 19 (2), Constitution of India, 1949-…(2) Nothing in sub-clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

[vi] Express Newspapers (P) Ltd. v. Union of India, AIR 1958 SC 578.

[vii] Dayal, Prof.Manoj, Media Laws-An Introduction, p.3 http://www.ddegjust.ac.in/studymaterial/mmc-2/mmc-204.pdf <as accessed on 14-12-2019>

[viii] Ibid

[ix] Brij Bhushan v. the State of Delhi, AIR 1950 SC 129.

[x] Virendra v. the State of Punjab, AIR 1957 SC 896.

[xi] Romesh Thappar v. the State of Madras, AIR 1950 SC 124.

[xii] Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305.

[xiii] Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106.

[xiv] Ibid

[xv] http://prsindia.org/report-summaries/review-contempt-courts-act-1971 <as accessed on 14-12-2019>

[xvi] Section 5(3) of the Press Council of Act, 1978, http://presscouncil.nic.in/OldWebsite/act.htm <as accessed on 14-12-2019>

[xvii] PCI defines fake news, The Telegraph, published on 5-04-2018, https://www.telegraphindia.com/india/pci-defines-fake-news/cid/1340925 <as accessed on 15-12-2019>

[xviii] Article 1. Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good. (Declaration of the rights of man, 1789), The Avalon Project, https://avalon.law.yale.edu/18th_century/rightsof.asp <as accessed on 16-12-2018>

[xix] Article 11. The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law. Ibid.

[xx] Article 42, Article 43 and Article 44 of the Act.

[xxi] A BBC World Service study titled Duty, Identity, Credibility: ‘Fake News’ and the Ordinary Citizen in India under its Beyond Fake News programme released in November 2018 read that people in India were found to be following their ‘nationalistic sentiments’ while forwarding messages; also emotion, not factual correctness, is the driving force. Religion is a close second when it comes to topics that encourage users to hit forward.

[xxii]http://www.mondaq.com/x/830446/Social+Media/Protection+From+Online+Falsehoods+And+Manipulation+Act+An+Overview <as accessed on 17-12-2019>

[xxiii] Ibid

[xxiv] Ibid

[xxv] Ibid

[xxvi] Ibid

[xxvii] https://www.loc.gov/law/help/fake-news/counter-fake-news.pdf <as accessed on 17-12-2019>


Pooja Ghosh Law Circa Intern

Pooja Ghosh

Author

Pooja hails from Uttaranchal University, Dehradun, and she spends most of her time in Reading, debating, writing articles and poetry. Her Interest area lies in laws for Real estate and contemporary laws. For any clarifications, feedback, and advice, you can reach her at editor@lawcirca.com

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