Apar GuptaBroad consensus of new a legal penalty for, “fake news” is based on an instinct to censor rather than to protect democratic values.
While people continue to doubt the scientific certainty of global warming almost everyone agrees to the growing tide of fake news. A survey last year by the BBC reported it as a concern for more than 83% Indians. It would seem that such an absolute majority has brokered consensus across the aisle for the budget session had five questions on fake news raised by MPs from four different political parties. Widespread agreement among individuals and groups with marked socio-economic diversity — even our public representatives, is a positive sign of national consensus over personal interests. But such comfort turns to disappointment for the compromise to tackle fake news is born from an instinct to censor dissent, rather than a reasoned defence of democratic values.
Defining “fake news”
The problem of fake news is the phrase itself. The term, “fake news” is an evocative monolith used to describe decreasing trust in media. But on casual scrutiny, it untethers itself. While many define it to proceed from inaccuracy, it proceeds much further to domains of defamation, online harassment, public order and hate speech. While a false statement may seem like a terrible thing, we all do it. Inaccuracy by itself is a legally tolerable exercise of free speech and may even serve important private and public functions as conveyed by a “white lie”.
Lies in personal conversations prevent embarrassment and safeguard privacy. They may shield our loved ones from hurtful information. In public contexts, parodies and satire often skirt between fact and fiction. For journalists, honest errors in reports are inherent, especially in societies such as ours where despite the right to information law, public officials and institutions retain a culture of secrecy. The propensity for inaccuracy in good faith increases with the growth of social media platforms which afford millions of Indians the ability to broadcast to large audiences with considerable ease and speed. It is not without reason that the US Supreme Court in United States v. Alvarez (2012) and the UN Special Rapporteur on Freedom of Opinion and Expression, agree that laws which in isolation prohibit false assertions are overbroad, vague restrictions.
Even beyond inaccuracy, the successive harms of fake news are in conceptual disarray and the process of development. Claire Wardle who heads First Draft, a centre at Harvard’s Kennedy School of Government focussing on digital journalism has put forth an influential framework to develop definitional rigour on what exactly constitutes, “fake news”. She notes in a recent submission to the Council of Europe by citing another study that 34 academic articles have used the term to, “describe a number of different phenomena over the past 15 years”.
While many of these harms are constitutionally tolerable, some fall within the scope of the pre-existing criminal law. It includes criminal defamation, various provisions on hate speech, also a specific provision on spreading false news intending to cause public disorder. Somewhat counterintuitively it seems that existing laws are already too restrictive thereby preventing fact-checking and investigative journalism. As PEN International’s India specific report, “fearful silence” notes, “[antiquated laws, like the sedition provision in the Indian Penal Code (IPC), continue to be used to silence discussion on matters of public interest.”
Hence, there is every possibility that a new law to criminalise “fake news” will be vague, applied arbitrarily similarly to Section 66A of the Information Technology Act which was declared unconstitutional our Supreme Court.
“Fake news” requires active engagement
But this does not mean that “fake news” is a matter for resigned fatalism, on the contrary, it requires active engagement. An information glut as being witnessed today is being channelled through well funded and organised entities (usually motivated groups which stand to benefit and wield power and money, such as political parties) that are challenging the credibility of shared social facts to suit desired narratives. In the process, society continues greater fragmentation in which we act as unwitting participants seeking to overpower and crowd out voices that disagree with us, often with disdain and hostility.
As Zeynep Tufekci notes in her book, “Twitter and Tear Gas”, “censorship is now increasingly performed by spreading disinformation, flooding with too much information, so some stories are deprived of attention, and creating distrust and confusion…” Something similar was said by our Supreme Court more than two decades in the seminal Cricket Association of Bengal Case when it presciently observed,“One-sided information, disinformation, misinformation and non-information all equally create an uninformed citizenry which makes democracy a farce.”
While the law may seem like a panacea, we have not even diagnosed the ailments correctly. Advocating for blanket fake news laws, especially on journalists and media entities will be administering a medication that threatens the frail health of public debate. Any such law will render every single person with a smartphone a potential suspect. It is also important to shift attention from censorship that often arises from attitudes of elitism and privilege to understanding the distinct harms caused by increased flows of information.
While some of the remedies may indeed be legal such as greater regulation of political parties, legislative reforms which ease existing restrictions such as sedition and criminal defamation will be a higher priority. A broad problem such as fake news requires diverse approaches beyond law. Illustratively these may include, greater support for fact checking and accreditation agencies, strategies which deepen civic education beyond the secondary school curriculum, greater accountability and transparency of algorithms used by social media platforms and even structural changes within government that bring greater transparency.
The problem of fake news requires patient, sustained engagement. More importantly it requires countering our own inherent biases towards censorship that term every scrap of disagreeable content as fake news.
(An edited version of this article was published on May 4, 2018 in the Indian Express).