Does The Constitution Protect Fake News?

The problem of fake news has recently generated substantial discussion around the globe. Several countries and jurisdictions are adopting different measures in response. For instance, Malaysia has enacted and the Philippines seeks to enact criminal legislation against fake news dissemination by individuals. The proposed measures in the European Union, in contrast, are mostly soft in nature. These include investing in technology that would help people separate the true from the false and the trustworthy source from the untrustworthy one, investing in mechanisms that allow people access to “diverse perspectives about topics of public interest”, partnering with relevant stakeholders “to support efforts aimed at improving critical thinking and digital media literacy”, etc. Likewise, the United States is funding in technological tools that would automatically check the veracity of information fed in.

The argument has generated significant discussion within the Indian context as well. Some agents have themselves made efforts to check fake news, such as WhatsApp’s ad campaigns and “forwarded” tag strategy. Many have proposed the need for a legal check on misinformation. Online requests have come up requesting the SC to take action. The Electronics & IT Ministry lately invited comments on draft amendments to the existing intermediary guidelines. Nonetheless, some have questioned if targeting intermediaries like WhatsApp would at all solve the underlying problems of mischief, hate, and intolerance.

Free Speech beneath the Constitution

This freedom is largely controlled by two articles. The first is Art.19(1)(a), which reads:

All citizens shall have the right… to freedom of speech and expression;

The SC has read this article extremely liberally. This right encompasses the freedom to communicate ideas and information of all kinds. Crucially, it involves the individual’s right to use any platform or medium of his/her choice for the communication of his/her thought. In other words, my right to speak is acknowledged irrespective of the medium or platform I resort to – a public rally, the newspaper, the cinema, the television, or the social media.

Naturally, this right is not perfect. The 2nd article is Art.19(2), which reads:

(2) Nothing in subclause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause 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 offense.

The expansive right to free speech discussed above can, therefore, be restricted by the State. But it may be so restricted subject to three conditions. 1st, there must be a law (statute) in place that imposes the restriction. 2nd, the restriction imposed must be reasonable. Third, and this is the focus of my argument, the restriction imposed must be proximately connected to at least one of the following grounds: (1) the sovereignty and integrity of India, (2) the security of the State, (3) friendly relations with foreign States, (4) public order, (5) decency, (6) morality, (7) contempt of court, (8) defamation and (9) incitement to an offence.

Importantly, this list of grounds is exhaustive. There cannot be a 10 justification. Consider some speech-regulating laws in place today and see how they concern to one of these grounds. We have laws prohibiting incitement to riot (public order), libel (defamation), obscene speech (morality), and comments scandalizing or lowering the authority of any court (contempt of court), etc. Hence, when we ask if the State can make a law regulating fake news, we must first examine whether the regulation of fake news has a proximate link with any of these 9 grounds.

Fake News and Art.19(2)

Before we go to the grounds, we might examine why we want the State to regulate fake news. Is the query the misinformation itself? View seemingly innocuous misinformation like false claims about GPS trackers in currency notes. Or is the query something else, something that results from the misinformation? Instances of the latter are the public alarm, unfair political mileage, loss of the army’s morale, mob lynchings, or harm to someone’s reputation etc.

If our target problem is the misinformation itself, i.e. if we simply want to stop people from misleading irrespective of whether the lie has other consequences, none of the nine grounds could help us. (1), (2), (3), (7), (8) and (9) are nowhere in the picture. Neither is (4), as “public order” is understood by the Court as a violence-based standard. This leaves “decency” and “morality”. The jurisprudence on both grounds is actively somewhat underdeveloped. The Court’s last words on these grounds suggest that “decency” is limited to checking indecent acts of a sexual nature, while “morality” points to constitutional morality, that is notions of right and wrong derived from the constitutional meta-principles of liberty, equality, dignity, secularism, democracy. We do not yet have quite concrete cases where these vague principles have been explained more clearly, but it seems fairly strange that they would justify a law seeking to protect people from false information.

Positively, then, our target query could be the outgrowths of misinformation. But we run into a similar hurdle again. Which of the nine grounds can possibly encompass the idea of maintaining the collective morale of the armed forces, or that of preventing political parties from gaining unfair political mileage? Of course, there are some potential consequences of fake news circulation that would fall squarely within the ambit of Art.19(2). For instance, if a piece of fake information is also defamatory.

Henceforth, any false information that falls short of the legal thresholds of defamation, obscenity, incitement, etc. cannot be legally regulated. These examples are often quite stringent and tough to meet. For example, even tough advocacy of violence is not enough to constitute an Art.19(2) problem. The “public order” threshold is satisfied only when the speech stops being mere advocacy and turns into incitement. The crucial difference between these 2 is a matter of listener autonomy: if the listener has enough time and opportunity to ponder on the speech/message and decide her course of action, the speaker is not responsible for the unlawful acts that the listener might perform after such deliberation. Only the listener herself is liable for those acts. It is only when the speech/message matches a “spark in a powder keg” situation that the speaker may be executed.

My limited point is that not all fake news is regulatable under the Art.19(2) areas. For Example, mere rumor-spreading is unlikely to qualify as a “public order” query. This would be so even if the rumors were followed by a few violent remarks here and there. In other words, the Constitution does not allow the regulation of fake news qua false information, even though it may permit the same qua incitement, defamation, or hate speech, etc. One may very well take this state of affairs to be acceptable and understand that the proper way to counter misinformation is public education, not punishment. Or, one could view this as a shortcoming of our Constitution. Whatever the event may be, 1 thing is clear: the Government’s attempts to check fake news must target extra elements of it – over and above mere misinformation – in order to preserve constitutional scrutiny.

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