<p>There is genuine news, there is fake news, and then there is a lot of grey news in between – news that purports to be true but has a few falsehoods thrown in, or news that’s somewhat false but with a few truth bombs in it. The government, any government anywhere, doesn’t like fake news. But what annoys them is grey news. What really makes them apoplectic is political comedy, which is grey news of the most confounding sort, since it passes off entertainment as news by passing off news as entertainment.</p>.<p>Take Jon Stewart of the The Daily Show on American television. He does what he calls a form of political satire. But it’s real news cosplaying as satire and is better for it. But with comedians, there’s always a temptation to embellish facts or ignore facts altogether. The comedian Hasan Minhaj was accused recently of making up facts when he described his experiences with racism.</p>.<p>When the Indian government decided to impose rules governing content on digital intermediaries (X, Facebook, Instagram) that dealt with not only fake but also ‘misleading’ information, comedians were the most to be alarmed, as they had the most to lose. Kunal Kamra, the Indian comedian, filed a case in the Bombay High Court, and this case, decided last year, is the subject of today’s column.</p>.<p>The architecture of Indian regulation of digital media begins with the appropriately named Information Technology Act. The IT Act is an omnibus legislation that accounts for a variety of situations begotten by technology, from electronic contracts to digital evidence and offensive speech. The genesis of government rules come from statutory provisions in the IT Act that allow the government to regulate speech on digital media. The government introduced rules that purported to create a Kafkaesque government entity called FCU (Fact Check Unit) which would decide whether content regarding ‘any business of the central government’ on digital media was fake or misleading.</p>.<p>If the FCU deemed any content as offensive, then the digital media intermediary had to take it down. If the digital media intermediary didn’t comply, it lost the safe harbour that the IT Act has created, under which intermediaries are not legally responsible for the content on their platform. It’s a curious piece of legal gymnastics where speech at the wholesale level of the digital intermediary is policed by rules that toggle the on/off switch of legal responsibility for suspect content, and speech at the retail level of content creators is allowed to be policed by the digital intermediaries, who the government knows will be wary of losing safe harbour protection.</p>.<p>Can a citizen do something about restrictions on freedom of speech? Almost everyone in India knows that we have the freedom to express ourselves and that this is a constitutional right. But the law on the subject is actually more complicated than that. The freedom of speech is subject to reasonable restrictions in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.</p>.<p>In the Kunal Kamra case, the Bombay High Court decided that the government’s efforts to regulate fake and misleading speech went beyond the already wide spectrum of exceptions to free speech allowed under the Indian constitution. The court held that ‘it is not the responsibility of the State to ensure that the citizens are entitled only to information that was not fake or false or misleading as identified by the FCU.’ The court also found that the rules were over-broad and vague, particularly because the idea of misleading content had no guardrails to prevent its abuse. For now, the FCU has been declared as constitutionally invalid.</p>.<p>But problems remain. What can we do about fake news without creating a chilling effect on the marketplace of ideas? One way is to do what X does today, which is that the community of X posters polices itself. Whenever something allegedly false or misleading is put up, the post is accompanied by what other readers have said about it. This is called euphemistically as other readers ‘providing context’, but really it’s the community calling out offenders. This avoids government oversight but at the cost of some amorphous entity called the community. Will it work? We’ll have to wait and see.</p>
<p>There is genuine news, there is fake news, and then there is a lot of grey news in between – news that purports to be true but has a few falsehoods thrown in, or news that’s somewhat false but with a few truth bombs in it. The government, any government anywhere, doesn’t like fake news. But what annoys them is grey news. What really makes them apoplectic is political comedy, which is grey news of the most confounding sort, since it passes off entertainment as news by passing off news as entertainment.</p>.<p>Take Jon Stewart of the The Daily Show on American television. He does what he calls a form of political satire. But it’s real news cosplaying as satire and is better for it. But with comedians, there’s always a temptation to embellish facts or ignore facts altogether. The comedian Hasan Minhaj was accused recently of making up facts when he described his experiences with racism.</p>.<p>When the Indian government decided to impose rules governing content on digital intermediaries (X, Facebook, Instagram) that dealt with not only fake but also ‘misleading’ information, comedians were the most to be alarmed, as they had the most to lose. Kunal Kamra, the Indian comedian, filed a case in the Bombay High Court, and this case, decided last year, is the subject of today’s column.</p>.<p>The architecture of Indian regulation of digital media begins with the appropriately named Information Technology Act. The IT Act is an omnibus legislation that accounts for a variety of situations begotten by technology, from electronic contracts to digital evidence and offensive speech. The genesis of government rules come from statutory provisions in the IT Act that allow the government to regulate speech on digital media. The government introduced rules that purported to create a Kafkaesque government entity called FCU (Fact Check Unit) which would decide whether content regarding ‘any business of the central government’ on digital media was fake or misleading.</p>.<p>If the FCU deemed any content as offensive, then the digital media intermediary had to take it down. If the digital media intermediary didn’t comply, it lost the safe harbour that the IT Act has created, under which intermediaries are not legally responsible for the content on their platform. It’s a curious piece of legal gymnastics where speech at the wholesale level of the digital intermediary is policed by rules that toggle the on/off switch of legal responsibility for suspect content, and speech at the retail level of content creators is allowed to be policed by the digital intermediaries, who the government knows will be wary of losing safe harbour protection.</p>.<p>Can a citizen do something about restrictions on freedom of speech? Almost everyone in India knows that we have the freedom to express ourselves and that this is a constitutional right. But the law on the subject is actually more complicated than that. The freedom of speech is subject to reasonable restrictions in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.</p>.<p>In the Kunal Kamra case, the Bombay High Court decided that the government’s efforts to regulate fake and misleading speech went beyond the already wide spectrum of exceptions to free speech allowed under the Indian constitution. The court held that ‘it is not the responsibility of the State to ensure that the citizens are entitled only to information that was not fake or false or misleading as identified by the FCU.’ The court also found that the rules were over-broad and vague, particularly because the idea of misleading content had no guardrails to prevent its abuse. For now, the FCU has been declared as constitutionally invalid.</p>.<p>But problems remain. What can we do about fake news without creating a chilling effect on the marketplace of ideas? One way is to do what X does today, which is that the community of X posters polices itself. Whenever something allegedly false or misleading is put up, the post is accompanied by what other readers have said about it. This is called euphemistically as other readers ‘providing context’, but really it’s the community calling out offenders. This avoids government oversight but at the cost of some amorphous entity called the community. Will it work? We’ll have to wait and see.</p>
