By- Sabrina Bath
Fake news is a worldwide problem, and India is no different. The issue of fake news and the resultant disinformation is becoming more acute in the present cyber and digital age. Generally, misinformation or fake news is presumed to be harmless but looking at the recent events worldwide, it is clear of the harm and catastrophic repercussions it can lead up to. As the world is battling with the Covid-19 outbreak, sensational reports surrounding the origin of the virus and untested treatments are circulating across various online platforms especially social media without being duly verified. The peddlers of fake news through misinformation have been misguiding the general population about the outbreak of the pandemic. Such false news spreads quicker than the real news and puts the society in a state of chaos by manipulating the uninformed masses. Since the pandemic is now widespread in all parts of the world, there is a scarcity of legitimate information from the side of the authorities forcing them to contend against a tsunami of misinformation. An absence of a special law regulating fake news was also one of the reasons for the surge in infodemics. But the pre-existing regulatory measures can be invoked if someone is caught spreading fake news and such persons would be accordingly punished. In addition to this, the new OTT guidelines by the government also aim at containing the spread of the same.
Article 19(1)(a) of the Indian Constitution guarantees freedom of speech and expression. There is no explicit provision under the Indian laws that specifically addresses ‘fake news’. Nevertheless, under several statutes, there are various offenses that penalize specific forms of speech which may comprise fake news and have been time and again invoked on such speech in cases relating to the transmission of misinformation and fake news surrounding the pandemic. It has time and again been observed that the circulation of fake news is not limited to social media and various online platforms but the mainstream media also has a major role to play in its circulation. There is a conflict between the exercise of free speech and the circulation of misinformation. It is important to understand that the freedom of speech and expression is not an absolute right and has certain restrictions provided for under Article 19(2) of the Constitution.
What is Fake News?
The term ‘fake news” garnered prominence when it was used by the previous US President Donald Trump during the 2017 elections. There were debates over how fake news shared through social media platforms impacted the Brexit vote and the US elections. The term ‘fake news’ has no broadly agreed definition. It is a broad notion with a variety of connotations and meanings.
Fake news is a global threat, according to the Press Council of India (PCI). PCI defines it as “News, stories, data, information and reports that are completely or partially false.”
In a recently held online discussion, Supreme Court Justice Sanjay Kishan Kaul highlighted his alarming concern about the challenge of misinformation and fake transmission. He expressed that “Fake news is more destructive than Coronavirus itself having numerous ramifications.”He further said that the framers of the Constitution would have never imagined the new media would lead to an alarming rise in the circulation of fake news. Also, the importance of the conventional media’s role in picking out fake news, as well as their accountability in doing so was discussed.
Legal Framework for the spread of Fake News in the Pandemic
The freedom of speech and expression has been provided under the Indian Constitution and is guaranteed as a fundamental right. This right is not absolute and is subjected to reasonable restrictions in the interest of the security of the country, integral to its integrity and sovereignty, morality or decency, public order, relations with foreign countries, cases of contempt of court, incitement of an offence or defamation. The freedoms guaranteed under Article 19 can be suspended in cases of emergency under Article 358 of the Constitution and the mechanism for doing the same as outlined under Article 359. Although there is an absence of an explicit provision under the Indian laws in relation to fake news but there are a variety of laws under which various types of speech constituting as fake news can be penalised. The provisions of these laws have been used for penalising cases that involved the transmission of fake news during the pandemic.
(a) National Disaster Management Act, 2005- Any individual making a fake claim to enjoy the government benefits resulting from a disaster is subject to a penalty of up to two years of imprisonment and a fine under Section 52. Similarly, anyone engaged in false warnings, stipulating that anybody distributing or making the same in relation to the disaster’s enormity, causing distress is subject to a penalty of up to one year of imprisonment or a fine under Section 54.
(b) Indian Penal Code, 1860- It is a better appropriate remedy for victims of disinformation. Any individual circulating, publishing or making information that can cause public panic or is against public order, etc., is penalised for imprisonment up to 3 years or a fine or both under Section 505(1)(b). Also, anyone spreading rumours about the pandemic can be charged under Section 269 of the Code. The issue of fake news was highlighted in the case of Tablighi Jamaat Markaz in Delhi’s Nizamuddin surfacing as one of the Covid-19 hotspots. In situations where a specific religion is being attacked, measures can be taken against people propagating or creating such fake news if it is susceptible to being classified as hate speech. Anyone making a false allegation and intending to incite a disturbance can be charged under Section 153 of the Code.
(d) The Information Technology Act, 2000- In the current coronavirus outbreak, social media platforms are now a hotbed for hate speech, misinformation and fake news. The IT Act’s Sections 66C and 66D can be used to penalise both the administrators and the individuals who upload and transmit such harmful content.
(e) The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021- An oversight tool to address the challenges including the proliferation of fake news and social media platform misuse. But there is an ongoing debate that these regulations interfere with the basic right to speech and privacy of an individual.
Current legal development
In the case of Alakh Alok Shrivastava v. Union of India, the Apex Court required the media on having a sense of responsibility and ensuring that any unverified news that had the capacity of causing panic or public disorder would not be published. It also outlined the legal ramifications in situations of transmitting fake news about the pandemic under Section 54 of NDMA and Section 188 of IPC.
Fake news and Freedom of Speech
Those who profited from the pandemic must incur the legal implications indicated above. But only false information that has the capacity of causing fear or public disorder should be penalized and not all news from reliable sources. There is no restriction against having a free discussion about the pandemic. Furthermore, the Disaster Management Act the Epidemic Act provide the government broad authority. These measures are not intended to impinge on free speech, till the time they are used to disseminate reliable information rather than to provoke public fear or disorder. As a result, any government directive should fall under the purview of Article 19(2) of the Constitution. In the case of S. Rangarajan v. P. Jagjivan Ram, it was ruled by the Apex Court that anyone could express their opinion on any matter of public importance and openly criticising the policies of the government or its activities is not a justification for limiting the freedom of speech and expression. Freedom of speech encompasses both the right to express oneself and the right to know. The case of Bennett Coleman & Co v. Union of India broadly interpreted the right of free speech and expression and brought the ‘Right to Information’ within the ambit of Article 19(1)(a).
The significance of the right to know during this Covid-19 outbreak cannot be overstated. The free press is critical in disseminating reliable information to the regular populace. In order to safeguard the public from becoming a target of the infodemics, the Central and State governments must keep a close check on any cyber disruption. The value of authentic information can be reduced significantly by a tiny set of incorrect information that acquires support. As a result, agencies must work to spot fake news quickly, dispel it via online platforms and track down its origin. Existing regulations addressing fake news, like as the Epidemic Act, are antiquated and vague. In the lack of such particular legislation, people may be arrested arbitrarily and indiscriminately underneath the guise of such laws. To combat this threat, there is an urgent need for a specific anti-fake news law giving the government proportionate responsibility and power. Finally, media organizations must fulfil their obligation of informing the public about the facts and must assess all the information before disseminating it.
 INDIA CONST. art 19(1)(a).  INDIA CONST. art 19(2).  Krishna Sharma, “Fake News in Times of Covid-19: Role of Mainstream Media”, Academike (20 June 2021, 6PM), https://www.lawctopus.com/academike/fake-news-covid-role-of-mainstream-media/.  Sanjay Talwar, “Tolerance level in all section going down; Mindless forwarding leads to fake news: Justice S.K Kaul”, LiveLaw,( 20 June 2021, 7 PM), https://www.livelaw.in/top-stories/tolerance-levels-in-all-sections-going-down-justice-kaul-157621.  Ibid, 4.  Ibid, 1.  Ibid, 2.  INDIA CONST. art 358.  INDIA CONST. art 359.  The National Disaster Management Act, 2005, No. 53, Acts of Parliament, 2005 (India).  The National Disaster Management Act, 2005, s. 52, No. 53, Acts of Parliament, 2005 (India).  The National Disaster Management Act, 2005, s. 54, No. 53, Acts of Parliament, 2005 (India).  The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India).  The Indian Penal Code, 1860, s. 505(1)(b), No. 45, Acts of Parliament, 1860 (India).  The Indian Penal Code, 1860, s. 269, No. 45, Acts of Parliament, 1860 (India).  The Indian Penal Code, 1860, s. 153, No. 45, Acts of Parliament, 1860 (India).  The Epidemic Diseases Act, 1897, No. 3, Acts of Parliament, 1897 (India).  The Epidemic Diseases Act, 1897, s. 3, No. 3, Acts of Parliament, 1897 (India).  The Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India).  The Information Technology Act, 2000, s. 66C, No. 21, Acts of Parliament, 2000 (India).  The Information Technology Act, 2000, s. 66D, No. 21, Acts of Parliament, 2000 (India). The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, (accessed at https://mib.gov.in/sites/default/files/IT%28Intermediary%20Guidelines%20and%20Digital%20Media%20Ethics%20Code%29%20Rules%2C%202021%20English.pdf). Alakh Alok Shrivastava v. Union of India, 2020 SCC OnLine SC345. Ibid, 12. The Indian Penal Code, 1860, s. 188, No. 45, Acts of Parliament, 1860 (India). Ibid, 2. S. Rangarajan v. P. Jagjivan Ram, (1989) SCC (2) 574.  Bennett Coleman & Co v. Union of India, 1973 AIR 106.
Author- Sabrina Bath
Symbiosis Law School, Pune