Manish Kashyap recently surrendered before the police in Bettiah district, Bihar. He, along with three others, had been charged with making a fake video showing migrant labourers from Bihar getting thrashed by locals in TN. These were uploaded onto social media, and prompted swift action by the police who, apart from filing FIRs, initiated proceedings to attach Kashyap’s house and property in Bettiah city.
The TN police response nipped the problem in the bud and stopped it progressing into an inter-community feud, and a social and economic disaster. There are an estimated 34 lakh migrant workers largely propping up the MSME sector. Both the TN and Bihar governments deserve credit for ensuring that the problem was contained; Bihar by sending a team to TN, and the TN government intervening, to the extent of setting up helplines to assist victims. Notably, the TN government booked many people, including some BJP leaders, for allegedly spreading rumours. The team sent from Bihar to investigate the matter, also concluded that the complaints were based on “fake” material. This outcome contrasts sharply with other instances of fake news which ended in violent deaths. False reports of cow smuggling, transporting beef, trumped up charges of “forced conversions” have ended with innocent people getting tortured, lynched, burnt alive, and dying horrible deaths. In no case was any evidence ever produced to justify such vigilante “justice.” In 2018, 22 people were lynched as a result of fake news of being child lifters or engaged in cow slaughter. In this case, an apology was demanded from the opposition BJP in Bihar, for “misleading” the House on the issue of alleged attacks on migrants in Tamil Nadu.
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With the explosion of social media on an unprecedented scale, “Fake News” is a new social evil, which is rapidly expanding its footprint. AI software like Midjourney can create images from text prompts making it more and more difficult to tell the difference from real and fake. ChatGPT is a language based AI software that can create authentic looking audio-visual fakes in seconds. It could be “disinformation” where the news is designed to do harm, mainly by promoting enmity between groups and communities.
AI produced fakes can incriminate the innocent or exonerate the guilty and manipulate entire populations. According to Wikipedia, it is the forte of one particular party in India, with a dedicated brigade for the purpose. The second type of fake news is misinformation, where the news is false due to inadvertent error in presentation, not designed to do harm. It could also take the form of satire and humour, intended to amuse or make a point, rather than to deceive; a bit like the “April Fool” jokes, usually followed the next day by a good-humoured clarification. All this puts a greater responsibility on part of the individual to exercise discretion in forwarding sensational headline grabbing news without questioning the authenticity or origin. There are numerous options available; a reverse image search on Google can be done, software such Invid, Social Media Hoax-Slayer and AltNews, can be resorted to separate fact from fiction.
There has never been a concise legal definition of “fake news”, even though the CJI and the SC recognise fake news as a serious problem. India does not have a specific law to deal with it. As a result, the commonly used laws in the current scenario are the Information Technology Act, IPC, Disaster Management Act and Epidemic Diseases Act, to tackle misinformation and initiate awareness about fake news. Attempts to draft laws to deal with fake news met with severe criticism as it gave the government unbridled power to determine what is fake and indirectly created a backdoor for censorship. There were 30 writ petitions and 3 HC stay orders. The latest attempt is a notification by MEIT to establish a “Fact Checking Unit” as Amendment Rules 2023, to the IT Rules. This would give the government unrestricted powers to decide what is fake, false or misleading, and issue instructions to “intermediaries” not to host such content under the pain of prosecution. Organisations like the Editors Guild of India, Digipub and MediaNama have termed the amendment illegal censorship and a bid to control press freedom. The amendment is totally silent on the parameters by which the government will base its verdict on what is fake, judicial oversight or even the right to appeal.
The law is not totally silent. 505(2), provides penalties for promoting enmity, hatred between “different religions, castes or communities”. Section 505(1) of the IPC prescribes imprisonment which may extend to 3 years, or fine, or both. If against any place of worship, the imprisonment may extend to 5 years. Section 66D of the Information Technology Act, forbids the use of any computer or communication device for fake news. Section 54 of the Disaster Management Act, 2005 also has similar provisions.
Nor is there any paucity of judgements. Pankaj Rajmachikar vs State of Maharashtra, Alakh Alok Srivastava vs Union of India, and the SC order under “Section 54” of the Disaster Management Act, 2005. Instances in Uttarakhand, (false rumours against Tablighi Jamaat), Maharashtra, (false claims of Covid 19 therapies), with directions to Facebook and TikTok to remove users spreading misinformation are on record. In UP, a fake godman, Ahmad Siddiqui, who called himself “Corona Wale Baba” claimed that one could use a talisman to keep corona away. He was arrested for fraud and forgery. An FIR was filed for false claims of mattresses curing Covid.
The incontrovertible reality is that, rather than such scattered judicial pronouncements, we need a concise legislative enactment to deal with fake news. At the same time, we certainly do not need a censorship sledge hammer in the form of “Fact Checking Units”
to flatten any form of genuine, legal dissent or criticisms of government.
(The writer is a founder member of VHAG)
