Category Archives: Freedom of Speech

Fake News and Its Follies

fake-news

Fake news may seem to be very innocuous and in fact might not seem to cause much harm to anyone or have any real-world consequences. Fake news is a phenomenon where a few individuals, sites and online portals create or/and share pieces of information either completely false or cherry-picked from real incidents with the intention to mislead the general public or gain publicity. We all have at least once received a message on WhatsApp groups or on Twitter or on Facebook saying things like – Jana Gana Mana received ‘best national anthem’ award from UNESCO, or that the new Rs 2000 notes have a GPS enabled chip, or that Narendra Modi has been selected as the Best PM in the world by UNESCO. These apparently harmless rumours have done little more than made Twitter trolls target unsuspecting individuals, sometimes even well-known people.

This problem of ‘fake news’ has led to some very tangible damage in today’s world, such as, the recent rumour in Uttar Pradesh and surrounding areas, that there was a severe shortage of salt. The price of salt which was otherwise about Rs 20/kg, shot up to Rs 250/kg and in some cases to Rs 400/kg. The police had to resort to riot control and raids in multiple places to prevent looting and hoarding. The situation blew up to such a great extent that the state’s Chief Minister had to come out with a statement that there was adequate quantity of salt available.

Spreading false information for personal gain is not a new phenomenon, but with the growth of social media and other easily accessible news portals, the reach of the same has reached new heights. This concept came to the forefront given the amount of misinformation propagated by both the sides in Brexit and US presidential elections. This has grown to such a great extent that Oxford Dictionary selected ‘post-truth’ as the word of the year. In a post-truth society, individuals/groups are easily able to influence public opinion for or against their beliefs by posting false and incorrect information online (and probably even get paid for it).

There is a fundamental reason as to why fake-news is bad, it makes it tougher for the individuals to trust established institutions. The relationship between media and citizens is that of trust, the people expect the news portals to be honest and unbiased in their reporting. But, when they are constantly exposed to increasing amount of misinformation and hoaxes, they start losing the faith they have in these institutions. What this does is create a smoke-screen, through which people are not able to see and, judge or reach a definitive conclusion as to what is to be believed and what is not to be believed.

Though there is no set legal provision in India dealing with the problem of fake-news, the closest law the country has that deals with some sort of misinformation being spread is the defamation law. But even the validity of defamation law has been called into question, though the criminal defamation law has been upheld by the SC. It has been stated by critics that the law is being used by the establishment to curb the rights of individuals who question the actions of the governments or its leaders. Sites like Facebook, Reddit, Twitter, etc., can be classified as intermediaries and are the primary sources of fake news. Intermediary liability deals with the liability which can be placed upon such sites, and is dealt with under the IT Act. The provisions under this Act however are not adequate to deal with the issue of fake news. This is because intermediaries are only liable for breaches in privacy of the end-users and not for spread of misinformation.

There are a few other countries which have laws which deal with the subject of misinformation. Germany has mandated Facebook to maintain a 24/7 functioning Legal Protection Office in Germany. This department would take complaints from victims to them and the department would have to initiate an investigation and resolve the issue. If after 24 hours, the department fails to take any action, the company will be charged 500,000 euros (Rs 3,60,00,000) per day the news is left online. China had in 2013 made stringent rules against rumour-mongering. Indonesia has also set up a National Cyber Agency which would deal with content that the agency thinks are ‘slanderous, fake, misleading and spread hate’.

There is a possibility that there could be a chilling effect on the freedom of free speech and expression,  Facebook for example as a corporate entity will in trying to avoid the fine, block any sort of information which comes into question. This is because there is no accountability on the actions in this case. In the cases of China and Indonesia, the governments become the sole deciders of what truth constitutes and anything which they do not want the public to know or any information which is against the establishment’s viewpoint would be labelled as ‘fake’.

The promulgation of fake news has brought into focus the role of sites like Facebook, Twitter, Reddit, etc., which have becoming one of the major sources of news consumption in the developed world. Several analysts have blamed sites like Facebook for the absolute lack of accountability these sites have in dealing with the problem of misinformation spreading on their portals. Then again, moves taken by Facebook and Reddit have been questioned by free speech activists.

This problem of fake news actively being shared and the consequent need to set up regulations to counter this flow by social media outlets and the like raises some serious ethical and legal questions, including whether corporate entities like Facebook, Reddit, Google, etc., should be given a free hand in blocking or blacklisting ‘fake news’, whether the government should step up and actively take a part in stopping fake news and whether the benefits of checking the spread of misinformation are valuable enough to censor any sort of ‘suspected’ news. As of now most laws have still not adapted towards tackling these issues, however there has been a slowly shifting trend towards dealing with the same.

 

Advertisements

A Victory, and Moving Forward – TRAI Consultations on OTTs

Last week, the Supreme Court of India in its judgment in the case of Shreya Singhal and Ors. v Union of India has decreed S. 66A of the Information Technology Act unconstitutional in its entirety, and at the same drastically restricted the ambit of Ss. 69A and 79 by reading into them the jurisprudence of Art. 19(1) (a) and 19(2). It has at the same time struck down the notice-and-takedown regime, replacing it with a system with more oversight, as we will see in following posts.

We will shortly be coming out with separate, detailed posts on each of the separate dimensions of the judgement, including but not restricted to the Free Speech issues, the Intermediary Liability issues, and the Website blocking concerns. But before we start on to that, a short word of caution.

The victory of 66A is an absolutely immense victory for freedom of speech in India, and not just in the case of the internet – the judgement is a well-written, multifaceted one, which will in all probability have an impact on free speech jurisprudence for years to come. But freedom of speech on the cyberspace is not a victory that is final yet. As of right now, the most crucial debate in the domain of the Indian cyberspace, which holds its future in its hands, is that of Network Neutrality.

And right now, the TRAI has just this week itself released its Consultation Paper on Over-The-Top (OTT) services. While we will be releasing our posts on this issue soon as well, you can read the paper for yourself here, and read Medianama’s post on the issue here.

The crucial part here is that this paper is open for consultation at the moment. We do not have, in India, a John Oliver who can appeal to the masses and flood the TRAI with comments. But that in no way means that the work that is done here is any less important, or that these issues deserve any less concern. Please read, and please comment. These are the issues that decide the future of the internet in India, as much as S. 66A did, if not more.

Comments should be sent to: advqos@trai.gov.in

Facebook, ‘Internet.org’ and the Ignored Questions of Civil Liberties

(Image Source: https://flic.kr/p/4W8mW)

 Earlier yesterday, Facebook founder Mark Zuckerberg met with the Indian Prime Minister Narendra Modi and Minister of Communications and Information Technology Ravi Shankar Prasad (who curiously also holds the Ministry of Law and Justice portfolio). The Facebook CEO was in New Delhi on the 9th and 10th of October for the Internet.org summit.

It is not a surprise that much of Zuckerberg’s visit focused on the topic of ‘Internet.org’, which is a not-for-profit partnership set up last year by Facebook along with mobile phone technology providers Ericsson, Mediatek, Opera Software, Samsung, Nokia, and Qualcomm which aims to bring affordable Internet access to everyone. In fact, the most quoted part from his visit seems to be his statement that “Internet connectivity can be now considered as a human right”. And there are actually multiple quotes and articles on this issue. Unlike Vadodara, Zuckerberg’s visit has been covered in mainstream media. But an actual scrutiny of the issues raised therein and their consequences seems to be lacking. Continue reading Facebook, ‘Internet.org’ and the Ignored Questions of Civil Liberties

On Kill Switches, Media Silence, and Governmental Super-Powers – A Comment on Vadodara

(Image Source: https://flic.kr/p/5V1h4R)

The following is a post on the recent disconnection of mobile internet, bulk SMS and bulk MMS services by the government in Vadodara in light of social unrest and riots. It’s a bit of a long post, and therefore has been divided into sections – the first part details the factual background of the issue, the second part contrasts it with Hong Kong, the third part considers the legal perspective, and the final two parts are my comments on it. My sincere thanks to Swaraj Paul Barooah for his helpful comments on the post.

Background

In the past week, two very different cities have found themselves in the midst of social upheaval, and both of these cities have dealt with it in two very different ways. One is Hong Kong, and the other is our very own Vadodara. Continue reading On Kill Switches, Media Silence, and Governmental Super-Powers – A Comment on Vadodara

Cross Media Ownership in India: Cause for Concern?

The following post is by Shashank Atreya, a student of School of Law, Christ University, Bangalore. He is a founding member of the Committee on Public Policy and Governance, School of Law, Christ University, and has headed research panels drafting suggestions to the Parliament Standing Committee and Law Commission. Shashank is a Media Law enthusiast, and vouches for net neutrality. He brings us a detailed analysis  on TRAI’s recent suggestions on Cross Media Ownership, which formed part of it’s recommendations to the Law Commission of India. 


The media plays an important and multiple roles in society. The most obvious of these are collection and dissemination of information, communication and entertainment among the people. Further, through its reach to the people the media also transmits social and cultural values and serves as a medium of education. Thus by providing information the media can inspire and generate political social ideas and aid in shaping policy agenda and priorities.

Continue reading Cross Media Ownership in India: Cause for Concern?

The Pornography Question

(Image Source: https://flic.kr/p/aWsHkX)

The Problem

This post comes as a response to the recent litigation by Mr Kamlesh Vaswani in the Supreme Court. While the international stance towards pornography has been to allow adults to access it generally but absolutely prohibit certain kinds of pornography such as child porn, Mr Vaswani has asked for a blanket ban. His main demand was that the court make watching pornography a non-bailable offence because he said that it was the main cause of rapes in this country. While his contention can and has been argued about on other forums, what concerns us is the technical part. Is it actually possible to regulate pornography on the internet? And what are the consequences of doing so? These are the questions that I will dwell upon in this blog post.

Continue reading The Pornography Question