Fake News And Indian Cyberlaw

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FAKE NEWS AND INDIAN CYBERLAW

BY

PAVAN DUGGAL

ADVOCATE, SUPREME COURT OF INDIA

HEAD, PAVAN DUGGAL ASSOCIATES, ADVOCATES

PRESIDENT, CYBERLAWS.NET

 

India has begun to see a massive explosion of Fake News.  India being the country with the  second largest number of Internet users in the world, is seeing more and more Indians joining on the digital bandwagon. As more and more Indians are experimenting with the electronic content, India has begun to see massive increase in Fake News.  Fake News refers to the phenomenon where content is pitched as news which is factually inaccurate but which is so pitched so as to colour the perceptions and perspectives as also opinions of target group.

Fake News was already existent in the print media but its reach is relatively limited. With the coming of the Internet, the rules of the game have changed completely.  Internet has not just made geographic history but has also led to transforming every user into a global author, global broadcaster and global transmitter of data. 

The advent of social media has today allowed instantaneous publication and streaming on the go.  The advent of social media has also brought forward new opportunities as well as temptations. Not only people are posting all kinds of content but more significantly people are invariably not being careful of what they post.  The advent of WhatsApp has further tapped the underlining hunger of 15 seconds fame amongst the Indian population. Indians invariably in order to get that 15 seconds fame, are forwarding, reposting, retransmitting and sharing all kinds of information without even checking about the authenticity, veracity and reliability of such content. 

This peculiar trend has lead to massive increase of Fake News. Users are routinely, often without application of mind, sharing content which invariably is Fake News. The mindless forwarding of such content has led to massive increase of dissemination of Fake News. 

Various organizations and service providers are trying their level best to fight against Fake News.  Some stakeholders have begun a campaign against Fake News.  However, such efforts have not been borne any substantial fruit.

One of the main challenges in the context of Fake News is that Fake News as a phenomenon has not been addressed under the Information Technology Act, 2000.  The Information Technology Act, 2000 is India’s mother legislation dealing with data and information in the electronic form.  This is a special law and the provisions of the same prevail over anything inconsistent therewith contained in any other law for the time being in force.  The law was passed in the year 2000 and only amended once in 2008. We do not have any direct provisions to cover Fake News under the Indian cyberlaw. It is pertinent to note that the Information Technology Act, 2000 had also amended the Indian Penal Code, 1860 and inserted new offence including forgery of electronic information under Section 468 and 469 of the Indian Penal Code, 1860.  

When one creates Fake News, one creates false electronic records being fully aware of the fact that the said electronic records are false. Further, the said electronic records refer to content , which is often projected as true and authentic. Hence, Fake News can be brought within the ambit of offences under the Indian Penal Code, 1860. 

The question that comes up for consideration is who would be made liable for such dissemination of Fake News.  Would it be the person who generated it? Would it be the person who transmitted it? Would it be the service provider and platform responsible and liable for such Fake News? There is no settled case law in this regard. However, I am of the firm opinion that all these stakeholders are equally liable.

The person, who generates Fake News, needs to be handled with a strong hand. Further, the person who disseminates or forwards or shares or posts such Fake News, should also be made liable. It has been argued that the criminal liability of the transmitter / forwarder of such Fake News should be less as that of the generator. However, I believe that the transmitter also needs to be straddled with adequate legal liability. Any person who disseminates such Fake News needs to do basic due diligence before disseminating such Fake News. The service providers become intermediaries and are further mandated to exercise due diligence while discharging their obligations under the Indian Cyberlaw. Various parameters of due diligence have been stipulated by the Government.  However, these parameters were stipulated in the year 2011 and have now become slightly obsolete.  Further, the parameters of Fake News are directly not covered within the ambit of the stipulated parameters on due diligence.

India needs to rethink on its stand on intermediary liability in case if India wants to substantially move forward in the direction of regulating Fake News. Fake News has a huge impact upon destroying and diminishing the reputation, goodwill, standing and repute of people.  Further, Fake News once disseminated, becomes invariably a tool for cyber defamation and also harassment of the featured person.  Some campaigns have also been started against Fake News, but given the massive rapid misuse and dissemination of Fake News, it is clear that far more work needs to be done. The Indian Cyberlaw need to be amended and revised so as to, include specific parameters to be followed to prevent the spread of Fake News. Further, service providers need to be straddled with specific responsibilities to ensure that Fake News should not be disseminated and propagated on their platforms.

The Indian Cyberlaw needs to give a very strong message that should you be found to be disseminating Fake News, you would be facing serious consequences. Fake News continues to be a big challenge and will continue to keep on going, till adequate steps are not taken. All eyes are now on the Government on how it can quickly come up with cogent legal and enforcement strategies to regulate the problem of Fake News.

 

The author Pavan Duggal, Advocate, Supreme Court of India, is Asia’s & India’s leading expert and authority on Cyberlaw, Cyber Security Law & Mobile Law and has been acknowledged as one of the top four cyber-lawyers in the world. He can be contacted at his email addresses pavan@pavanduggal.com  and pavanduggal@yahoo.com.  More about the Author is available at www.pavanduggal.com and http://www.linkedin.com/in/pavanduggal.

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