A remedy that’s worse than the menace

The Karnataka government’s ill-advised law to crack down on fake news could not have been more ill-timed. Mere days before the 50th anniversary of the Emergency, the Congress government in Karnataka unveiled the draft of a draconian law that moots a maximum jail term of seven years and a fine of Rs 10 lakh for those guilty of posting fake news on social media.

If the political conditions and the armoury of laws brought to bear down on the people is held to be more intimidating, stifling and, therefore, anti-democratic under the present political dispensation at the Centre than during the Emergency, then greater the reason for the Congress government to set itself apart by desisting from the passage
of the Karnataka Misinformation and Fake News (Prohibition) Bill in its present form.

Laws such as the Unlawful Activities (Prevention) Act (UAPA) and the Prevention of Money Laundering Act (PMLA), which have been weaponised by the ruling BJP against anyone opposed to it, were all enacted and implemented first by the Congress party.

Authoritarian tendencies and ‘elective autocracy’ are not confined to one party. These attributes are manifest in all political parties and their reflex actions, especially when it comes to dealing with the media.

For all the laws, codified restrictions, implicit controls and ever-present threats to freedom of expression and the security of media practitioners, our hydra-headed media stubbornly refuses to be silenced or hammered into a monoculture.

The explosion of media in its multifarious forms and in a variety of languages, where narratives are shaped by individuals on social media, attests to the emergence of public service journalism on a scale not witnessed hitherto.

This new, alternative, people’s media, as it may be labelled, is the true face
of free and fearless journalism. This media cannot be kept down or managed like large sections of big media that
have been compromised and failed in their duty to uphold freedom of
expression and the values of public service journalism.

The same brave new media also spawns and peddles scurrilous stuff and endangers life and reputations. It is doubtless riddled with aberrations, fake news, hate, prejudice, lies and populated by political thugs, criminal masterminds, perverts, paedophiles and undesirables.

Yet it is home to those who dare and venture forth to speak truth to power, expose injustice, abuse of state power and interventions that vitiate electoral and democratic institutions and processes, confront entrenched vested interests and take on the many types of monopolists and mafia that rule the roost.

The KMFNP draft Bill needs to be viewed against this background as well as the efforts by the BJP government at the Centre to “fact check” and fight fake news.

In absolute terms, a case is always made out for all-out war against fake news, misinformation, disinformation and hate crimes. A little pause and reflection will remind us that those patronised and set up by state agencies, the elected elite and lawful authorities are the biggest offenders when it comes to creating and spreading fake news and falsehoods.

Any move to curb this, as the BJP at the Centre and the Congress party in Karnataka are attempting to do, is unlikely to succeed because these are motivated primarily by the urge to silence and discredit those who threaten the interests of these ruling parties.

Worse, the fight against fake news is on the premise that official power and authority alone can set the criteria to determine both truth and fact. On the Karnataka draft, even within the government, consultation is proving to be problematic. Although the draft Bill has been in the making for two years, the full text is not public yet; and even the official stakeholders are in the dark. In fact, they are yet to be specified, with the ministers and departments wrangling on who shall have the whip.

The Bill criminalises digital content and sets harsh jail terms and large fines for spreading misinformation or content deemed obscene, anti-feminist and or disrespectful to Sanatan symbols and beliefs. Individuals, companies and social media platforms would be accountable for the content on their networks.

The offences would be cognisable and non-bailable. The law would be enforced by a Fake News on Social Media Regulatory Authority and special courts that can order the offending content to be blocked; and, non-compliance would invite additional jail time and fines up to Rs 25 lakh.

Karnataka should bear in mind the experience of the Union government setting up fact-check units, including for news. Little credence would be given to a government agency tasked with the power to determine what constitutes fake news.

The Supreme Court has struck down Section 66A of the IT Act (Shreya Singhal v. Union of India) for chilling lawful expression through “vague language”. The Bill poses a serious threat to free speech as its provisions could result in selective or biased enforcement.

The Union government’s “fact-checking unit” under the 2023 IT Rules has also been successfully challenged on the grounds that the State should not be arbiter of truth with the power to penalise dissent. The Karnataka government would do well to read the Bombay High Court’s judgment on the danger of empowering an executive body to define and punish ‘misinformation’. In short, any such measure with powers vested in the hands of the executive would become censorship that stifles free expression and dissent.

If the government feels duty bound to go ahead with the Bill as a necessary evil, then it should do away with the criminal provisions and minimise the evil through wide-ranging public consultations with media organisations, civil society and citizen groups, experts in law and media, and rationalists.

(The writer is a political and foreign affairs commentator)