BACKGROUND

A quote often misattributed to Mark Twain goes something like “a lie can travel halfway around the world while the truth is still putting on its shoes.” Misinformation, or “Fake News” a term made popular by one particularly colourful former US president has become endemic to our social media infused zeitgeist. The spread of misinformation has surged and intensified with the rise of artificial intelligence. Earlier examples of misinformation were small scale smear campaigns. But recently, widespread misinformation has been attributed as the cause for some of the most significant socio-political developments of the decade like the 2016 US presidential elections or the UK Brexit referendum.

India is also battling the monster of widespread dissemination of misinformation aimed at swaying the public opinion for political gains and at times business gains. Not to forget the social media brouhaha over such mis-information which often results in lynch mob justice.

THE AMENDMENT

In order to try and deal with this issue, the Indian Government proposed amendments to Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules”) in April, 2023 (“2023 Amendment”). The 2023 Amendment proposed institution of fact checking units (“FCU”) by the Central Government to identify fake, false and misleading information in relation to the business of the central government. All intermediaries were mandated to not host, display, upload or publish any information flagged by the FCUs as fake.

CHALLENGED

The Central Government did their darndest to position this amendment as a measure to curb misinformation. But what was clear to many that this amendment could very well be used by the government to muzzle criticism and stifle dissent.

Kunal Kamra and others challenged the amendment, arguing it was unconstitutional and violated fundamental rights under Articles 14 (equality before the law), 19(1)(a) (freedom of speech and expression), and 19(1)(g) (freedom to practice any trade or profession). After protracted proceedings, the division bench of the Bombay High Court delivered a split verdict on January 31, 2024. Justice Gautam Patel ruled in favour of Mr. Kamra striking down the 2023 Amendment on the grounds that it was violative of Article 14 of the Constitution and sought to impose unconstitutional restrictions on the fundamental right to free speech. Additionally, the judge expressed concerns that the FCU could become an unchecked arm of the executive wielding unilateral control over the identification and categorisation of misinformation.

Justice Neela Gokhale however held that 2023 Amendment met the test of proportionality and therefore was not violative of the constitution.Mr. Kamra filed an appeal against the split verdict before a single judge bench of the Bombay High Court. After hearing both sides, Justice Chandurkar, delivered a ruling on September 20, 2024, siding with Justice Patel and holding the 2023 Amendment unconstitutional, citing its chilling effect on free speech. While this ruling has been celebrated as a major victory by the free speech advocates, it remains uncertain whether the central government will accept the Bombay High Court’s decision or appeal against this judgment before the Supreme Court.

GLOBAL SCENARIO

Many nations across the globe are also taking steps to address this issue. Germany has introduced a social media law holding individuals accountable for intentionally spreading misinformation. In the backdrop of the 2024 US presidential elections, USA has introduced laws that make it illegal to create and publish deep fake content related to elections 120 days before and 60 days after the election day, with hefty penalties for violations. There are also regulations requiring social media platforms to start making public disclosures if they display AI generated visuals.

CONCLUSION

While it is critical to stem the flow of misinformation in any society, legislative overreach may not be a viable solution. Some alternative approaches that could be considered to address the problem of misinformation without compromising freedom of speech could involve media literacy programmes to help people develop critical thinking skills and evaluate the credibility of information sources; Support independent fact-checking organizations such as International Fact Checking Network that are not affiliated with the government as these organizations can provide unbiased assessments of information and help to debunk false claims; encourage social media platforms and other online platforms to take steps to combat misinformation, such as labelling false or misleading content and reducing its visibility; and reinforce strong ethical standards in journalism to ensure that news outlets are committed to accuracy, fairness, and objectivity. It would be interesting to observe the manner in which governments world over and specifically the Indian Government chooses to navigate this complex landscape going forward.

Authors:  Anupam Shukla and Vedika Shah