THE MENACE OF HATE SPEECH AND FAKE NEWS IN INDIA

Introduction

• During the COVID-19 pandemic period there was the rapid spread & penetration of the fake news in social media platforms like Facebook, WhatsApp, Twitter, Tiktok (before being banned) etc. thus wide spread misuse of social media ecosystem.
• According to a recent report by the fact checking website BOOM-
  • COVID-19 related fake news which began climbing in the month of March took a massive spike in April & May, particularly after the Tablighi Jamaat incident in Delhi.
  • Out of 178 fact checks, as much as 35% of them were fake videos, 29% images and a similar percentage were doctored messages on range of issues such as fake diagnosis and treatment, falsified quotes by celebrities with their photos, false notifications and lockdown guidelines among other.
• This misuse of these platforms can have economic, psychological, and political impacts, both online and offline, and can lead to discrimination and even violence.

The issue of Fake News/Hate speech:

• Fake news is not novel issue, history abounds with various examples of twisting the truth for material increase, popularly called lying, or flexing the truth for political, religious, monetary, etc gains, named as propaganda.
• Fake news is generally assumed to be as old as journalism itself, and reputable media organizations have seldom played a role of "gatekeeper" for trustworthy information.
• In the fast-moving internet age this role has been primarily challenged as rumours and false information are being viral, sometimes leading to tragic results.
• With the advent of digital media and the popularity of internet, the responsibility of state to regulate electronic media mainly social media platforms to curtail the menace of fake news without compromising on their Fundamental Right to Freedom of Speech has gained prominence, in relation to the best practices being followed in other countries.
  

  CONSTITUTIONAL PROVISIONS According to Article 19(1)(a): All citizens shall have the right to freedom of speech and expression. This implies that all citizens have the right to express their views and opinions This includes not only words of mouth, but also a speech by way of writings, pictures, movies, banners, Freedom of the press is an inferred freedom under this This right also includes the right to access information because this right is meaningless when others are prevented from knowing/listening. It is according to this interpretation that the Right to Information (RTI) is a fundamental Restrictions on the freedom of speech of any citizen may be placed as much by an action of the state as by its inaction. This means that the failure of the State to guarantee this freedom to all classes of citizens will be a violation of their fundamental rights

What are the regulations dealing with Fake news in India?

There is no specific law against fake news in India.

• Free publication of news flows from Article 19 of the Constitution guaranteeing freedom of speech.
• Press Council of India, a regulatory body, can warn, admonish or censure the newspaper, the news agency, the editor or the journalist or disapprove the conduct of the editor or the journalist if it finds that a newspaper or a news agency has violated journalistic ethics.
• News Broadcasters Association (NBA) represents the private television news and current affairs broadcasters. The self-regulatory body probes complaints against electronic media.
• Indian Broadcast Foundation (IBF) also looks into the complaints against contents aired by channels.
• Broadcasting Content Complaint Council (BCCC) admits complaints against TV broadcasters for objectionable TV content and fake news.
• Indian Penal Code (IPC) has certain sections which could curb fake news: Sections 153 (want only giving provocation with intent to cause riot) and 295 (injuring or defiling place of worship with intent to insult the religion of any class) can be invoked to guard against fake news.
  • Civil or Criminal Case for Defamation is another resort against fake news for individuals and groups hurt by the fake news.
  • IPC Section 499 (defamation) and 500 (whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both) provide for a defamation suit.
• Section 66 in The Information Technology Act, 2000: If any person, dishonestly or fraudulently, does any act referred to in section 43 (damage to computer, computer system), he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both.

Best practices followed in other countries:

• FRANCE: France has had a strict Hate Speech law in effect since 2005 and has passed a stricter legislation for online application against hateful speech (Lutte contre la haine sur internet- An Act to Combat Hateful Content on the Internet- Avia law) it requires social media platforms to take down objectionable content within 24 hours of being notified.
• GERMANY: Germany's Network Enforcement Act or NetzDG law represents a key test for combatting hate speech on the internet. Under the law, which came into effect on January 1, 2018, online platforms face fines of up to €50 million for systemic failure to delete illegal content.
• SINGAPORE: Singapore’s POFMA (Protection from Online Falsehoods and Manipulation) Act 2019 is arguably one of the most comprehensive misinformation laws globally. POFMA covers “false facts” or “misleading statements”, but not satire, parody, opinions, and criticisms. Under POFMA, various directions can be issued to platforms and users before dispensing fines and imprisonment.
• UNITED STATES: The US guarantees absolute freedom of speech and has no legislation on hate speech. Through various judicial pronouncements, courts have consistently argued that even hate speech is protected under the First Amendment. The Russian interference during the 2016 presidential elections served as a turning point in the threat perception towards misinformation and manipulative sponsored content. In the 2020 presidential elections, big platforms like Instagram, Facebook, and Twitter took proactive steps to flag questionable content and direct end-users to reliable sources.

Challenges in regulating social media to curb Hate speech in India:

• Freedom of speech: Any regulations for social media content should follow Article-19 of the constitution & thus the accepted norms of freedom of speech and impartiality which is hard to apply with the restrictions on the content.
• Independent Regulator: An independent regulator can be misused in geographies where the idea of impartiality is used to the wish of the ruling regimes.
• Speed of content spread: Social media spreads messages way faster than other forms of mass media.
  • Nearly 60,000 posts are shared on Facebook in just one second across the globe. Nearly 8,00,000 messages are sent in just one second across WhatsApp.
  • Almost 70,000 searches are made on Google in just one second. Given this usage by people an expert algorithmic mechanism to remove the content is needed.
• The principle of self-regulation: Majority of the platforms themselves adjudicate on their user-policy and community guidelines. Self-regulation has largely been ineffective in preventing abuse of the platform and has garnered criticism in various democracies. Indeed, both government-led moderation and self-regulation models have been operational worldwide and in India since the inception of social media.
  • For example, more than 17,444 websites were blocked for promoting obscene content until 2019 by the IT Ministry and similarly, Twitter took down 6,36,248 accounts in 2015-16 alone for disseminating extremist content.

• Overregulation vs. under-regulation: This debate tends to overshadow the deeper and more inherent structural problems in the tech platforms themselves. The platform structure is driven by exploiting the disparities of wealth and power, as algorithms reward virality and interactions for monetary gains, even though they might be divisive, misleading or false.
• Never ending invention of technology: While disruptive technologies are evolving at a faster rate, the regulations fail to address gaps to deter unethical behaviour. The platforms alone are not equipped to oversee the task for a remodelled approach to counter manipulation and hate speech. Due to the overarching jurisdictional nature of the acts and easy multiplication, taking down content is a difficult task in countering hate speech and fake news.
• Complex issue of nature of content: For example, Facebook in India has been accused of “ideological bias” by both Left- and Right-wing groups. The various organizations have called it “inherently biased” against people who support right-of-centre ideology and a latest tool to stoke internal divisions and social disturbances.

Guiding Principles

The Indian response must be driven by four guiding principles:

• Accountability and transparency over decision-making by tech platforms, state and non-state actors
• Ensure consistency and collective will by encouraging inclusive stakeholder engagement for all decision-making processes
• Respect human rights standards and habituate humane application of tech. Incentivize innovative adoption of redesigned tech products that pre-empt and provide safeguards from online harms
• Legal certainty for consistent application and execution of duties and rights of stakeholders.

Other Suggestive Measures

Considering the above guiding principles following points are to be considering for an effective mechanism:

• The Indian government must Institute an independent regulator to oversee compliance with fake news and hate speech codes that will be adopted.
• There must be Proportional, necessary and minimal interventions from the government and platforms with effective and consistent application of their duties.
• An inclusive and ethical Code of Conduct developed in consultation with all stakeholders to realign platform’s fiscal-driven-incentives with public interest.
• The state must resort to Democratic application of penal and non-penal standards of existing laws & Periodic review policies to improve effectiveness.
• State should Encourage transparency by commissioning open-source research with periodic reports from regulator, platforms, civil society organizations and academia
• Avoid creating any barriers or strengthening any dominant positions by large incumbents.
• Welfare measures like Promoting digital education initiatives and workshops to acquire necessary skills from a young age.
• The Redressal and appellate mechanisms to provide support to any wrongful application of standards, take downs or breach.

Conclusion

Hate speech is provocative and divisive, and in extreme scenarios where it has remained unchecked, has been responsible for terrorism and genocide. With newer tools to weaponise and sensationalise enmity, it must not be protected under the realm of free speech doctrine. Similarly, fake news also has the potential to affect human safety and public health, and instigate violence. If fake news and hate speech continue to proliferate at the current rate, they pose threats to the democratic ecosystem. India must work to devise an all-stakeholder model to counter the weaponisation of online content, before it further widens societal faultlines.