Dangers of regulatory approach in tackling fake news

Our social fabric is reeling under the monumental onslaught of hatred and misinformation even as our political discourse has become increasingly toxic and vile.

The recent incident of mob-lynching represents yet another manifestation of the extreme abuse of communication technology and social media. It is an undeniable fact that the social media universe is the breeding ground of the vices which has given a spurt to communal incidents in the country.

The direct and disastrous consequences of such content, circulated by social media, cannot be downplayed nor dismissed arbitrarily. In our diverse society, the cohesion we enjoy must not be taken for granted in the face of unregulated technologies that people are not trained to use.

In this particular context, it is very important to understand the various limitations, challenges and nuances that the regulation of the ambiguous phenomenon called fake news. While the need for robust and meaningful regulation of fake news has been underlined in the legal and policy discourse, it is contended that it would have undesirable chilling effects on ‘free speech’.

Manish Tewari, former minister for telecom, and information and broadcasting, has strongly argued for regulating technological mediums by making social media platforms liable when their networks become catalysts of mass social and economic disruption.

Even as concerns about implications for democratic discourse, social fabric and national security are highly important, the interests of over 34 crore social media users must also be recognised. This is important because the editorial checks by social media platforms in order to remove flagrant content have been proven to be extremely inadequate.

In February 2019, the Ministry of Electronics and Information Technology (MeitY)
released the Draft Intermediary Guidelines, 2018 under Section 79 of the Information and Technology Act in what seemed to be in the immediate aftermath of and as a state response to the series of public lynching(s) of Muslim individuals suspected of carrying illegal cattle or beef meat by vigilante groups.

These guidelines emerged after what were termed as ‘secret consultations’ that the MeitY conducted with internet companies and also soon after a notice was issued to WhatsApp by the MeitY for ‘abetting fake news’ on its end-to-end encrypted messaging platform. However, this move by the MeitY has instead introduced complex questions of curbs on the constitutionally protected right to freedom of speech and expression, through censorship and is akin to a regulatory overkill.

This will also have a tremendous impact on the functionality and product design of leading messaging platforms as well. The challenge of intermediary liability and over-regulation is also significant. It is difficult to have safeguards for harmless discussions or even purely satirical texts which could be subjected to censure. Moreover, the intermediary platform’s regulation of communication and the effectiveness of their regulation would always be subject to the nature of government oversight.

In this case, due to intermediary liability and the consequent state control over determining the effectiveness of social media platforms in regulating fake news, can result in indirect regulation of online content, as per the whims of the ruling dispensation.

The current legal framework and the path that the MeitY seems to chart as the designated nodal authority to decide the future of anti-fake news law, is fundamentally geared towards creation of a state-monitored surveillance security regime similar to what we have seen in other jurisdictions like Singapore and Malaysia.

This, instead of injecting transparency into the systems and processes that intermediaries adopt for regulating and moderating content that is hosted on their platforms or fixing greater proportionate accountability on the ‘intermediaries’ that allows for significant intrusions in to privacy and undermining of free speech.

Even the German approach of imposing heavy penalty in addition to criminal culpability, is not desirable as it would lead to over-cautious censorship, unintended harm to users and making technology start-ups unsustainable. Hence, the regulatory reaction of governments across the world to combating fake news has been deeply invasive towards the individual’s informational privacy and autonomy due to their emphasis on ‘traceability’.

Therefore, a necessary course of action that is adopted in the future should thus involve exploring alternatives such as a multilateral approach aimed towards creating a globally harmonised framework for regulating online hate speech that incites violence. Or even towards technological innovations such as improving Terms of Service agreements of Internet Service Providers and end-user screening software.

Community consciousness and encouragement of anti-fake news initiatives are also crucial so as to ensure that a critical mass of public discourse rejects malicious attempts of hate-mongering and misinformation.

Public support

Initiatives like AltNews must gain more public support and even state support so that they can fulfil the necessary public duty of combating fake news. Even the technological platforms and social media companies must step up their efforts at awareness and sensitisation.

Yet, it is also important that we continue to re-imagine our existing regulatory architecture for a foundational reconstruction of existing methods and approaches to significantly address the problem of fake news. This re-imagination must shift from the current ‘one-size-fits-all’ model to allowing ‘legal flexibility’ that can be customised as per the function of each intermediary.

A transformational policy shift in this direction will not only protect privacy and informational rights, promote and strongly protect ‘safe harbours’ but also make platforms liable for mass social and economic disruptions especially in the deeply divided and sectarian times that we live in.

(The writer are students of National Law School of India University, Bengaluru)