Fake news in India is turning out to be a massive challenge for all. What began at innocuous levels has today presumed disastrous heights. Fake news was initially never considered seriously. As a result, the kind of measures that should have been there as part of legal framework for addressing the same were non-existent.

We began to see how the advent of the Over-The-Top (OTT) applications transformed the society.  These applications made people global authors, transmitters and broadcasters of data.

With users being different levels of maturity in terms of Internet, it was bound to happen that people would misuse the facility of computer systems for the purposes of transmitting illegitimate & malicious content which has been prepared with vested interests to cause harm in the society.

A study by Oxford University has warned India of a fake-news epidemic as elections approach. The background behind such an epidemic is indeed very fertile. India’s General Elections are slated to take place in the mid of 2019. We are currently seeing a political environment where parties are doing all things possible to gather support for themselves. Consequently, we are beginning to find that all kinds of content to be distributed as genuine content without any prior verification.

The scenario, where India has seen a couple of dozen deaths caused by lynchings due to rumours on WhatsApp, is likely to see more disastrous ramifications of this. Thus, it is very important for the Government to start taking cogent steps in the direction of enforcing discipline to prevent fake news, amongst various activities of service providers.

When one looks at the legal position in India, one finds that the legal frameworks are in place for the Government to take action. All activities pertaining to use of computers, networks, resources and communication devices and also data and information in the electronic form are governed under the IT Act, 2000. The 2008 amendments to the Act came up with a new concept of an “intermediary”. 

It is a broad concept that includes all legal entities, who, on behalf of other persons, receive, store or transmit any particular electronic records or provide services with respect to that record and includes Network Service Providers, Internet Service Providers, Web Hosting Service Providers, Search Engines, Online Payment Sites, Online-Auction Sites, Online Market Places and Cyber Cafes. Hence, all of the OTT applications and social media are intermediaries within the meaning of Section 21(w) of the IT Act.

Once, they become  intermediaries, the law mandates them to exercise due diligence while discharging their obligations under the law. Various parameters of due diligence have been defined under the law. The law provides an exit route for an intermediary from potential legal liability as much that if the intermediary exercises requisite due diligence, it could be exempted from exposure of potential legal consequences, both civil and criminal under the Act.

The Government has notified the IT Rules, 2011 under which various parameters pertaining to due diligence have been defined which are relevant from the perspective of fake news. It is the right time that the Government has to come up with new guidelines and legal frameworks to regulate dissemination and publication of fake news. The Government has the power under Section 87 of the Act to come up with these guidelines. These guidelines need to specifically stipulate the various rights, duties and responsibilities of various stakeholders in preventing the dissemination of fake news. The previous experience of intermediaries having grievance officers and the grievances of affected persons to be completed within 30 days, was a failed experience.

With the onslaught of fake news, the Government needs to come up with stringent parameters that once any instance of fake news publication or transmission is identified then at once the same needs to be reported to the concerned intermediary. The intermediary should be under a legal duty to instantaneously block the transmission and dissemination of the same within two to four hours.

Such an approach is going to put a responsibility on intermediaries so that they can’t be mere spectators. Intermediaries have been extensively misinterpreting the judgment of the Supreme Court and have been adopting the role of a mere spectator. Just to reiterate, Shreya Singhal judgment mandated the service providers not to act on their own and only act once they are notified by the Governmental agency or by an order of a competent jurisdiction.

The misinterpretation of the judgment has complicated the scenario. Hence, it is all the more necessary that the Government needs to come up with strict guidelines mandating all intermediaries to follow the same.

India is behind other countries like Malaysia who earlier had come up with a legislation on fake news. We require a dedicated legislation and stringent legal provisions on fake news with the amendment to IT Act, 2000 and rules and regulations to fight this menace effectively and efficaciously.

The publication and dissemination of fake news to be made a serious crime punishable with seven years imprisonment and fine. Not only does India need to come up with stringent provisions restricting the publication of also come up with appropriate enforcement of such provisions.

 (The writer is President, Cyberlaws.net)