Background:

The coronavirus (“COVID-19”) pandemic has bought with it several complications and challenges. What citizens needed during this time, was certainty and assurance regarding their safety and true and correct status of the pandemic. However social media was, in several instances, rife with speculation and fake news which, further threatened the safety of citizens.

The Supreme Court took up the “menace of fake news” by “electronic, print or social media” in the context of the harm caused through false alarms raised through fake news leading to largescale movement of migrant workers in Alakh Alok Srivastava Vs. Union of India on 31.03.2020. The Supreme Court quotes, Dr. Tedros Adhanom Ghebreyesus, Director General, World Health Organisation (WHO):

“We are not just fighting an epidemic; we are fighting an infodemic. Fake news spreads faster and more easily than this virus, and is just as dangerous.” (emphasis added)

The Petition 

Advocates practicing before the Supreme Court filed the above Petition, seeking reliefs for migrant workers who were stuck away from their home towns during the COVID pandemic and for welfare of such migrant workers to be provided basic amenities.

The Petitioners contended that thousands of migrant labourers, along with their families, were walking hundreds of kilometres from their work place to their villages/towns. The Petitioners sought directions to Government authorities to shift the migrant labourers to government shelter homes/accommodations and provide them with basic amenities like food, clean drinking water and medicines.

Government’s Response:

1. On Steps to Combat COVID

Government of India responded to the Petition with extensive details of the  steps taken by the Government to combat the COVID 19 pandemic and to restrict its spread. The Government of India filed a Status report setting out the various steps taken by the Government including the measures taken for dealing with the needs of the poor, including for food, clean drinking water and medicines.

With respect to the primary issue raised in the Petition i.e., of the plight of migrant labourers and their movement to their home towns, the Government of India set out in its reply that “labourers who are unemployed due to lock down were apprehensive about their survival. Panic was created by some fake news that the lock down would last for more than three months”. That initially State Governments and Union Territories were transporting these labourers from borders to their villages but that such transportation using overcrowded buses was actually causing more damage to labourers given the proximity during travel. Consequently the migrant workers were instead shifted to nearby shelter homes/relief camps where further directions were issued to ensure medical tests were done and the migrant labourers be provided with basic amenities. The reply also highlighted the advisories given to police and other authorities to take a humane approach to migrant workers and stranded tourists.

1. On Fake News

Apart from the submissions on the various steps taken to contain COVID19 and to assist migrant workers, the Government of India raised the issue of the exodus of migrant labourers being triggered due, according to the Government, to some fake/misleading news and social media creating panic. The Government therefore sought directions from the Supreme Court of India “to prevent fake and inaccurate reporting whether intended or not, either by electronic print or social media, which will cause panic in the society”.

It was in the light of these submissions that the findings and directions with respect to fake news was passed by the Supreme Court.

The Finding On “Infodemic”:

The Supreme Court of India after extracting the quote set out above of how an “infodemic” or fake news was just a dangerous as a virus and that it spreads more easily, held that panic had been created resulting in the large movement of migrant workers, which caused untold suffering and also loss of life in some instances and that therefore the menace of fake news could not be overlooked.

The Court issued stringent directions in the light of the above situation to hold “Media (print, electronic or social) to maintain a strong sense of responsibility and ensure that unverified news capable of causing panic is not disseminated”.

The Supreme Court clarified that its order is not intended to interfere with free discussion about the pandemic but only to ensure that the official versions of developments are being reported by media.

The Supreme Court signs off by emphasizing the “trepidation of the poor men, women and children” and its directions for police and other authorities to act in a humane manner, provide for the mental health of persons in the camps to alleviate their panic and to “treat them with kindness”.

The Analysis

Fake news has been a vexing issue particularly with its ease of spread on social media platforms and chat apps (such as Whatsapp). In several instances, quite innocently, users share information assuming that they are helping others but without verifying the truth or correctness of the contents. Such rampant sharing of fake news has led to death of many such as the instances of mob lynching of 2017[3] demonstrated.

The case of Alakh Alok Srivastava (Supra) was not the first in which the Supreme Court gave directions against dissemination of fake news. In the context of lynchings and cow vigilantes, the Supreme Court passed a detailed order in Tehseen Poonawalla Vs. Union of India[4] by way of preventive, remedial and punitive directions. Of these, the preventive directions to Law Enforcement Agencies refers to measures for curtailing fake news. The Supreme Court directed inter alia, constitution of a special task force to procure intelligence reports of people involved in spreading hate speeches, provocative statements and fake news.

The decision in Tehseen Poonawalla (Supra) was followed in Kodungallur Film Society vs Union Of India on 1 October, 2018, whilst dealing with mob frenzies and fake news preceding movie releases. 

Interestingly in both of the abovementioned cases, the Supreme Court elaborately deals with freedom of speech and expression and the need to protect the same, as they are fundamental to a democracy. It notes “Freedom of speech and expression in different forms is the élan vital of sustenance of all other rights and is the very seed for germinating the growth of democratic views”. The Court quotes:

“Freedom of speech is a principal pillar of a free government; When this support is taken away, the constitution of a free society is dissolved and tyranny is erected on its ruins.”

The concern that the recent trends in decisions raises is that the extensive rights extended to law enforcement to curb extreme violence and a pandemic ought not to become the new norm. The balance that is needed to prevent or protect against fake news lies in ensuring free speech whilst restricting circulation of fake news or news or information that can cause panic or alarm, which then results in harm or even death.

Way Forward To Combat Fake News

Jurisdictions that have brought out legislations against fake news (including Germany’s The Network Enforcement Act, 2017 and Malaysia’s Anti-Fake News Act 2018) have been criticized for their overarching and open – ended provisions. Many other jurisdictions are also contemplating legislations against fake news with some resorting to policy documents and advisories.

In India, a private member’s bill titled ‘The Fake News (Prohibition) Bill, 2019’ has been tabled by Smt. Rama Devi M. P. Whilst several debates have been initiated in the Lok Sabha with respect to the proliferation of fake news, specific legislation is awaited. However, as was noted by the Supreme Court in Tehseen Poonawala’s case, existing provisions may also be invoked to combat fake news depending on the intent and purpose behind such fake news such as Section 153A IPC, which makes Hate Speech, as defined therein an offence.

The Government is also evaluating amendments to its Intermediary Rules to make social media platforms responsible to implement preventive measures by expanding the due diligence mandate under Section 79 of the Information Technology Act, 2000 (as amended), which provides a safe harbor to intermediaries but subject to compliance of the requirements set out therein.

The Industry not surprisingly is batting for self-regulation. The proactive move through the organisation IAMAI in formulating a self – regulating “Voluntary Code of Ethics” by Social Media Platforms for the General Elections to Lok Sabha 2019 is indicative of future options for combating fake news. Through this Voluntary code, social media platforms bound themselves over to ensure that restrictions that arise under The Representation of the People Act, 1951 (in particular under S. 126) were adhered to.

In another illustration of self – regulation brought about in the wake of India tightening its stance on the need for responsible social media,  WhatsApp introduced security features such as limiting forwards to 5 messages at a time. Further improvements recently restrict forwarding of messages, which have already been forwarded five times to forwarding to one recipient at a time. Whatsapp clarifies on its site that this feature has been added in order to “slow down the spread of rumors, viral messages, and fake news”.

Facebook introduced a feature to notify users of possibly harmful content or misinformation about COVID19, before it is shared, liked or commented upon. In just March 2020, Facebook reportedly displayed warnings on 40 million posts related to COVID19 pursuant to about 4000 articles by its fact checking partners. These figures indicate the extent of the malaise of fake news and its ease of spreading, as the Supreme Court noted, as an “infodemic”. Whether the Government of India decides to adapt specific laws to combat fake news or applies existing laws, it would still be a fine balancing act to ensure that free speech does not suffer from the “chilling effect” syndrome that even advisories can create amongst public whilst acting as effective deterrents against criminal to irresponsible conduct in wilfully or negligently spreading harmful false information.

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[1] Pandemic is defined as “an outbreak of a disease that occurs over a wide geographic area and affects an exceptionally high proportion of the population: a pandemic outbreak of a disease” – Merriam Webster Dictionary (https://www.merriam-webster.com/dictionary/pandemic).

[2] 2020 SCC OnLine SC 345

[3] https://indianexpress.com/article/india/murderous-mob-lynching-incidents-in-india-dhule-whatsapp-rumour-5247741/;

[4]  (2018) 9 SCC 501;

[5] (2018) 10 SCC 713;

[6] Benjamin Franklin, “On Freedom of Speech & the Press”, from the Pennsylvania Gazette, November 1737;

[7]http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/998LS%20As%20Int….pdf%20fake%20news.pdf;

[8] Information Technology (Intermediary Guidelines) Rules 2011 (https://meity.gov.in/writereaddata/files/GSR314E_10511%281%29_0.pdf);

[9] More teeth for Section 79 of IT Act to check scourge of fake news at https://www.business-standard.com/article/current-affairs/more-teeth-for-section-79-of-it-act-to-check-scourge-of-fake-news-118072700059_1.html

[10] Internet And Mobile Association of India;

[11] WhatsApp Blog at https://blog.whatsapp.com/

[12] https://faq.whatsapp.com/en/android/26000253/;

[13] https://economictimes.indiatimes.com/tech/internet/facebook-displayed-warnings-on-40-million-posts-related-to-covid-19-in-march/articleshow/75184657.cms;