Fake News & You – No prizes for fastest finger first!© - N. S. Nappinai, Advocate, Supreme Court of India & Founder cyber saathi

The new year is here and with it a hope for a better future and many a (possibly short lived) resolution. There is one resolution however that we all can however pledge to and make it stick – to pause before we share. To not spread the ‘infodemic’. To not share or forward without checking or exercising caution. To not become tools and in some instances weapons of disinformation. To use and engage on social media / chat app platforms responsibly.

The contours and consequences of spreading fake news or disinformation becomes more apparent when we delve deeper and these also highlight the urgency for restraint.

Fake News & Crimes

Fake news can cause loss of life. Be it fear of child kidnapping or cow slaughter, disinformation has been a strong factor that has driven mobs to take lives.

I recollect my Youth Hostel organised Himalayan trek many decades back. This being an annual calendar event, all villages in the designated path are well aware and expect the 50 odd participants to pass through daily. Children in these villages probably await this with maximum glee. It also gave us participants immense pleasure to be greeted by the lovely smiling innocent faces of these children from the mountain ranges – a good morning with chocolate please was the standard greeting and we gladly met their request.

Given recent trends of mob violence, probably there would be an advisory to not engage with children or share chocolates any longer. It indeed is the death of innocence brought about by abuse of technology.

In July 2018, five friends out on a picnic faced mob fury for distributing chocolates to village children in Karnataka. With rampant child kidnapper videos causing fear mongering, the sight of five men distributing sweets was misinterpreted, as preparation for kidnapping children and Whatsapp, which was the preferred medium to spread such fake news also became a tool to hunt down and kill one of the friends and severely injured two others (https://www.washingtonpost.com/politics/2020/02/21/how-misinformation-whatsapp-led-deathly-mob-lynching-india/). This was not the first or only such incident, as was noted by the Supreme Court in Tehseen Poonawala v. Union of India (2018). Taking note of the grave consequences of the wild fire spread of fake news, the Supreme Court urged legislators to bring in special laws for punishing mob lynching cases. It also put in place immediate measures including to fast track mob violence cases and to provide compensation for victim’s family.

The Supreme Court reiterated in 2020 its entreaties requesting not just television and print media but also social media to exercise caution in the dissemination of information, in the light of disinformation causing a migrant crisis in the light of the corona virus pandemic (COVID), in Alak Alok Srivastava v. Union of India (2020).

Fake Messages & Social Media

 Is Cadbury really giving away free chocolates or gift hampers? Do we feel pious and virtuous because we were so selfless in sharing these messages about free chocolates? That we have not been selfish to keep this a secret? Is that why we share so quickly on social media and Whatsapp without even pausing to check if this could be true? ‘Free’ is a very potent four letter word – it sparks interest like no other and induces even the most disinterested to click that tempting link and BAM! – you either end up downloading malware onto your device or share personal information which you would otherwise not even share with your neighbour of 30 years! These freebie messages are some of the easiest hoaxes to make people share personal information and we as users are the ones that are helping possibly criminal elements to gain such personal information by sharing these messages. (https://www.republicworld.com/fact-check/viral/fact-check-cadbury-free-chocolate-baskets-for-their-196th-anniversary.html

Fear is a classic trigger for fake news dissemination and what better than COVID to cause this fear. No surprise that this became one of the top grossers for criminals to use Covid fake news and also to create fake apps and garner personal information or use the fake apps to download malware into devices.

Fear and greed, as I have oft said, are the most effective triggers that criminals use to even make the most cautious slip and fall into their trap. If covid fear was one big trap, so were fake messages of blocking of bank accounts or digital wallets or even of your mutual fund accounts. These traps were more potent, as such fake messages resulted in victims calling criminals and ending up losing their entire bank balance.

Loans with waived EMIs or low interest pressed the need or greed buttons effectively to make people already facing financial crises to lose what little they had. Fake messages using known brands and trade names on social media platforms and Whatsapp or even SMS messages induced the financially weak to part with their little remaining savings to miscreants who promised them loans at 4% interest or lesser or waiver of EMIs for 6 months or similar fake promises.

Disinformation as a Social Engineering Tool

 Imagine the impact of statements such as “Pope Francis Shocks World, Endorses Donald Trump for President” or that “FBI Agent Suspected in Hillary Email Leaks Found Dead in Apparent Murder-Suicide” on political outcomes. Both of these were fake messages. These were not even for political gain, as was reportedly the case of various social media manipulations prior to the 2016 US elections but purportedly done for making money using trending topics! (https://www.bbc.com/news/blogs-trending-42724320). You can only speculate on the impact when such manipulation is undertaken consciously. Fake news and propaganda that is camouflaged as factual information to manipulate public opinion is not new – it just became easier with social media and more so with chat apps. It is also a lot more potent.

In November 2020, the psychological impact of one of the Nazi propaganda mechanisms – poster art, was evaluated through the release of an illustrated book (https://www.dw.com/en/how-the-nazis-used-poster-art-as-propaganda/a-55751640). The book explores the use of Nazi posters  to perpetuate the myth of positive and inspirational stories to encourage young and old to join the movement. This abuse highlights another form of fake news propaganda – the use of ‘inspirational’ stories using well-known personalities or names that make you believe the messages to be ‘factually correct’.

We tend to believe any ‘inspirational story’ more so when it is attributed to a well-known personality. Forwarding such stories may seem like a harmless pastime. However the habit-forming process and its negative connotations are mostly forgotten. That people start believing such ‘inspirational stories’ to be true merely because they have read it multiple times and that such belief in fake messages is harmful at many levels is lost.

Curbing Fake News

One of my favourite pranks was when a colleague and I were arduously studying the year’s court calendar and long weekends and noted with sadness that many holidays fell on Saturdays – spontaneously I declared in an authoritative manner – “oh no all holidays this year falls on Saturdays! Can you believe it? Even Good Friday is on a Saturday this year!” and equally spontaneously the poor girl replied “really? That’s so sad!”. Pranks like these don’t harm and can bring a smile to us even several decades later.

We cannot forget satire and the innumerable newspaper and now online April fools pranks that keeps us entertained. It is indeed important to note the harmful effects of fake news but whilst formulating methodologies to curb them we also have to be mindful of our fundamental rights and also the fun elements, lest they also get curbed in the process. In November 2020, the Supreme Court of India sought the Central Government’s intervention to formulate regulatory processes to curb fake news in Jamiat Ulama I Hind v. UOI. This direction was prompted by the submissions on communal hate speech in the face of COVID.

Whilst formulating such regulations it is imperative that the Government keeps in mind the construct of reasonable restrictions and also of life and liberty nor amounting to just mere existence. Our rights of free speech, which includes a bit of entertainment have to be balanced in the wake of harmful abuse through fake news. The evocative phrase of ‘spark to a powder keg’ used in Kedarnath Singh v. State of Bihar (1962) (https://timesofindia.indiatimes.com/india/Sedition-Time-for-new-laws-to-shield-free-speech/articleshow/51017910.cms) to distinguish freedom of expression from hate speech that incites violence for instance is one clear indicator for balancing regulatory frameworks to limit it to ‘need’ rather than ‘want’. India also has international precedents including the European Union’s ‘Guidelines on Spread of disinformation’ and other proposed / enacted social media legislations to guide its steps. The Government will also have to keep in mind that ‘one size fits all’ cannot be the norm. Each form of fake news or disinformation will have to be dealt with using distinct methodologies.

The Government will also have to evaluate the use of existing mechanisms and provisions. Certain forms of hate speech against certain specified categories, for instance is already dealt with under Sections 153A & 153B of Indian Penal Code, 1872 (‘IPC’). Fake news that amounts to hate speech that may cause harm, as is set out in these provisions can be prosecuted under the same. Defamatory content again is dealt with already under Sections 499 & 500 IPC, as non-cognizable offences. Fabricating electronic records and manipulations through misrepresentations and cheating again are dealt with both under IPC as also the Information Technology Act, 2000 (as amended) (‘IT Act’). Whilst specific regulations may be viable, effective use of existing provisions are also needed for immediate succour.  

Meanwhile, social media has been called upon to exercise self-regulation and you can already see manifestations thereof. Almost every social media platform and search engines have developed algorithms and are using Artificial Intelligence (‘AI’), neural networks and natural language processing to curb fake news. Facebook is reportedly using AI technology to identify and block or take down proactively, fake news before it is even being reported. Twitter is also re (https://www.cnet.com/news/facebooks-ai-is-flagging-more-hate-speech-before-you-report-it/). Twitter flags messages as harmful or misleading, as it did to label ‘synthetic and manipulated media’ (https://economictimes.indiatimes.com/magazines/panache/no-more-fake-news-twitter-will-label-tweets-that-contain-harmful-misleading-content-on-coronavirus/articleshow/75688104.cms). These are welcome moves but again those requiring caution in application, lest these very same methodologies are used to curb free speech.

We, as users ought to also exercise caution and restraint, not in any manner that restrains us from exercising our fundamental rights. Possibly the adage ‘your right to swing your arms stops at my nose’ is the best to explain caution whilst engaging on digital platforms too. 

Social media, chat apps and technology enabled communications are powerful tools that equip participative democracy. Such engagement ought to be encouraged to ensure fair, transparent and effective polities. The Government does have before it a fine balancing act therefore whilst deciding regulations not only for punitive actions in case of harmful fake news and disinformation causing crimes but also to regulate and provide guidance for Intermediaries to ensure that their actions do not scuttle free speech or expression.


The writer is an Advocate, Supreme Court of India & Founder – Cyber Saathi Foundation. This column in collaboration with SheThePeople.TV takes forward the Cyber Saathi initiative to empower victims through knowledge of threats and vulnerabilities on electronic domains and remedies to combat them through laws and remedies. This will be a monthly column that will be published on the first Friday of the month

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