FAKE NEWS IN THE INTERNET WORLD

‘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 of 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 some 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. 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 of news/facts does not always mean easy access of ‘genuine’ news/facts. What your
Uncle or Aunt forwarded you through Whatsaap /Facebook/Instagram may not always be fact-
checked by them and consequently even by you too. This easy access and easy ‘forwarding’ of
news phenomenon has created more social problems as well as crimes. It may range from
bullying, defamation, black-mail and even more violent crimes. Lynching by the mob is a newly
debated phenomenon in India and in most of such cases, these 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 the access to social
media and other internet platforms. Such is the increasing burden on the 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 speech 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 the 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,
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‘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 vigor of those yielding the proper fruits.’

J. Bhagwatiiii 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 set up. If democracy means 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 which manner. This is required to
strengthen people’s political rights, helps 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’ ivas 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 mandated 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 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
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is distinguished from the right of the ordinary citizens vi.Regarding the right of freedom and right
of press being on an equal footing, Dr. B. R. Ambedkar explained the position as follows: "The
press (or the mass media) has no special right 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 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 on the various aspects related to freedom.
These are as follows:

1) Pre-censorship of news or views declared as unconstitutionalix;

2) Ban on publication was held to be contrary to free speechx;
3) Freedom of circulation and propagation is included in free speech and expressionxi;
4) Adverse actions of the government, for example- fixing number of pages and size of the
newspaperxii, the volume of news and viewsxiii etc.

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 deal 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 interestsxiv.

Press and Registration of Books Act, 1867- This Act specifies 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 expense 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 being penalized.

Contempt of Court Act, 1952- It is also stated as a ground upon which reasonable restrictions
can be applied. The Act divides contempt into civil and criminal contempt. Civil contempt refers
to the wilful 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)
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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 judiciaryxv.

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

Parliamentary Proceedings Act, 1956-Section 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
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, bona-fide abridgements etc.

Defense of India Act, 1962- Section 3 (7) deals with the entire gamut of printing and publishing
of any newspaper or book and 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 member 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, penalty may range from 6 months imprisonment
which may be extended up to 1 year in case of subsequent 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
press. The Council is composed of the Chairman and 28 members. The members range from
journalists, editor 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 Parliamentxvi.

The Act enumerates the following objects and the functions of the Council under Section 13 of
the Act as follows-
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“(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 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;
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(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 in the field of fake news. It is to
be noted that a notificationxvii 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 the 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 on
the freedom of speech and expression. The restrictions on speech can be tested in courts as well.

FRANCE: Under Article 1xviii 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 communication of
ideas and opinions has been termed as the most precious right of man.
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The freedom of 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 Vxx of the Act-

A. 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.
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FAKE NEWS-THE NEWS ‘TAKE-OVER’

Why has ‘fake news’ or ‘manipulated information’ taken over everyone’s internet? How does its
spread poses as a big 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 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

Extent of fake news is faster- This is what makes fake news as 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 in 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 more effective among the
readers.
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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

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 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 an 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 partxxvi.

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-
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‘- 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 amount 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 is 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 option either because it will mean ‘more over-reaching powers’ for
the Government. This can be observed in the 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 is 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 of the content that we read and share online.
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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 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 legislations 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 exists 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. State of Madras, AIR 1950 SC 124.
iii
Maneka Gandhi v. Union of India,
iv
Keshavananda Bharati Sripadagalvaru & Ors. v. 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. State of Delhi, AIR 1950 SC 129.
x
Virendra v. State of Punjab, AIR 1957 SC 896.
xi
Romesh Thappar v. 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>