DISINFORMATION IS A PANDEMIC: WHO DECIDES WHAT FAKE NEWS IS?
Mother always said speak the truth. However, she never explained how to discern what the truth is or where it may be lie. Hindu philosophy tells us the truth is that which does not change, but that same philosophy also tells us nothing is permanent. In the face of this existential angst, the Deputy Commissioner of Police in Greater Mumbai on May 23, 2020, issued prohibitory orders under Section 144 of the Code of Criminal Procedure preventing "any person from the dissemination of information through various messaging and social media platforms like Whatsapp, Twitter, Facebook, Tiktok, Instagram… found to be incorrect and distorting facts". If you live in Mumbai, the police may now arrest you if they disagree with your version of the truth.
This is not new and has been going on in the rest of the country for quite some time. Back in 2018, when actor-turned-politician S V Shekhar forwarded a social media post that suggested women journalists needed to sleep with their superiors to retain their jobs, he was instantly charged with a series of crimes including Sections 504 (Provoking Breach of Peace), 505 (Public Mischief) and 509 (Insulting the Modesty of a Woman) of the Indian Penal Code. Mr. Shekhar immediately applied for anticipatory bail before the Madras High Court. In his plea, he claimed that he frequently forwarded messages without much thought, and in any case, he certainly did not intend to commit any crime. Unimpressed, the Madras High Court denied his request. In its reasoning, the Court created an extraordinary new precedent: forwarding a message is equal to accepting and endorsing that message.
At the level of reality, anyone who has been a victim of obsessive-compulsive forwarders of social media junk messages would be grateful that it requires its citizens to act responsibly. However, there is always a downside risk and a pound of flesh to be paid. Following the logic of the Madras High Court, if you forward a potentially slanderous article to your friends, the law labels you an accomplice for criminal defamation. On any given day, you could be charged with a wide array of possible crimes.
In normal times, fake news can be lethal, as Russian meddling in American elections first demonstrated. With a developing pandemic, the risk is far worse. The World Health Organization has dubbed the disinformation around COVID-19 an 'infodemic' and spent a disproportionate amount of time debunking fake news claims. Who can forget the incredible assertion that drinking gaumutra (cow urine) can kill the coronavirus. To combat this risk, Indian officials have taken recourse to Section 54 of India's Disaster management law, which provides a one-year prison term for anyone who "makes or circulates a false alarm or warning about disaster or its severity or magnitude, leading to panic."
However, what of the Companies that host controversial content on their websites? Surely you would think they must share in the blame for acting as vehicles of disinformation. While intermediaries doubtless play a part, Section 79(2) of the Information Technology Act protects social media companies from liability for any third-party content on their platform. This may nevertheless change soon. In December 2018, the Information Technology ministry released a draft of the IT Intermediaries Guidelines (Amendment) Rules. These rules seek to make online intermediaries much more responsible for content on their platforms. They are, however, as on date yet to be notified. To solve this problem, Mumbai's creative solution was to make anyone designated an 'admin' on a social media group personally liable for the information disseminated on the group chat. Naturally, these orders were immediately challenged before the Bombay High Court, where a ruling is yet to be made.
On March 31, 2020, the Supreme Court of India had the opportunity to consider the question of false reporting about the pandemic. In the case of Alakh Alok Srivastava v. Union of India, the Indian Government, requested the Court to issue directions to "prevent fake and inaccurate reporting whether intended or not, either by electronic print or social medial, which will cause panic in the society." The Court expressed the hope that the media (print, electronic or social) will maintain a strong sense of responsibility in its reporting of content but stopped short of issuing comprehensive directions. The Court ultimately ruled that "we do not intend to interfere with the free discussion about the pandemic, but direct the media refer to and publish the official version about the developments."
Nevertheless, that may not be what the Maharashtra Government had in mind when it issued its Section 144 prohibitory orders. The order includes directions that prevent "inciting mistrust towards government functionaries and their actions taken in order to prevent the spread of the Covid-19 virus…" It is not without irony that Political commentators argue these orders are meant to silence BJP opposition voices who criticized the state government for what they claim is poor management of the pandemic!
It is no secret that the laws around fake news may be used as a sledgehammer to stifle dissent rather than sophisticated legal fiction to preserve truth. More worryingly, anything that may not conform to the official position may be categorized as fake news. Recall the Supreme Court's directions to the media to "refer to and publish the official version about the developments." The Information and Broadcasting Ministry reportedly issued an official memorandum attached with the Supreme Court order to various government media agencies like the Press Council of India and the National Broadcasting Foundation for compliance. Reporting anything but government-mandated news may now place you in contempt of Court.
That doubtless begs a larger question: to what legal standard do we test the truth of a statement? Do we need the law to distinguish between 'absolute lies' and what may be 'credibly possible forwards'? As any journalist will tell you, the news is not simply news. That a man dies is not news. That he was murdered maybe news, that it was his wife who killed him is news. That she did it because of his affair with the neighbour may be the best news yet. News as often as not is story-telling, narratives centered around real-world events that may not reflect the complete and ultimate truth.
Within this construct, any piece of news is capable of being 'fake.' Consider the Hindu belief in reincarnation. How can a court credibly be expected to establish the truth of these ideological assumptions against legally admissible and available evidence? After all, what is the truth but our perception of the world as we see it, and the sense we can make of it? In the end, whenever courts are confronted with deciding the truth of a message, they will not be differentiating real versus fake. They will be deciding the difference between legitimate and illegitimate fake news!
A practicing lawyer at the Gurgaon based law firm N South, Advocates.