Laws to Deal with Fake News and Sensitive Data Circulation Online

The world is battling a deluge of misinformation and this has been up for a long time now. The advent of internet, social media platforms and real time messengers has given a free run to criminals, miscreants, nation states and other motivated actors. In fact, society, today is experiencing a sort of ‘information disorder’ where it has become extremely difficult to differentiate truth from falsity. A few years ago, ‘fake news’ was a rarely used term. Today, it has become one of the greatest threats to the existing system of democracy and a hot topic for the debaters. Though there is no one definition for fake news, what makes it a concern is that it allows subjective interpretations of the concept, thus making it difficult to study or allow any policy interventions. Fake news comprises of stories, news, and hoaxes created to misinform deliberately or deceive readers or to push a political agenda. In contemporary times, various media propagate fake news. A newspaper in print media, television in broadcast and internet in digital form propagate fake news. However, due to the changing role of social media in the past few years, it has become a forerunner in the distribution of fake news. Even though India does not have a specific law to deal with menace of fake news but we still have existing legal provisions under Indian Penal Code,1860 Information technology Act,2000 and the Disaster Management Act,2005 to tackle misinformation and initiate an intense awareness campaign on false news and privacy violations.

Fake News and The COVID-19 Story

In 2020, while the world wrestled  the pandemic caused by a new virus, authorities around the world battled false news about the virus on digital platforms. Covid19 spread to almost 190 countries, and with more and more people forced to stay home during quarantine/ lockdown, internet usage is bound to be higher than usual as people have resorted to online platforms for working remotely, seeking knowledge, reaching out to loved ones and also at the time of crises people are eager to share personal details and any misinformation at this crucial time can have devastating effect. Beginning February, when awareness about the disease rose in India, social media platforms have seen numerous posts on Covid-19 — ranging from information on the outbreak to false news about its origin and spread to offering untested treatment for the disease, and also prescribing strange diets.

After the lockdown being enforced across the country, these misleading posts not only amplify the menace of fake news, creating panic and frustration, but also result in privacy violations as medical records of tested individuals are being circulated online. In a few cases, false medical reports have also been generated for random individuals and then people are suspecting them of having the diseases and socially boycotting them.

Such overflow of content makes it difficult for the people to sift real news from the fakes. In spite of the warnings and concerns, many vicious minds continue to create and spread fake posts. A larger section forwards them across groups, often out of ignorance or the excitement of becoming a ‘news breaker’.


ROLE OF SOCIAL MEDIA

Social media operators play a more responsible role. Social Media acts as a facilitator of democracy by providing the public with equal access to information and equal opportunities to participate. The public sphere is the nexus between public life and civil society. It is that space of the society where access is guaranteed to all the citizens to engage and discuss the matters of general interest to form a public opinion. Evolution of social media and its increasing role as a platform for its users to express their opinions has guaranteed freedom in an unrestricted way.

Under the IT Act and the rules notified in April 2011 for social media intermediaries, their liability didn’t arise if they were not responsible for the inception, transmission and reception of content via their networks. With the experience over a decade with this status quo, it is very clear that they need to be made to take more proactive steps and not wait for the law enforcement or judicial references to remove fake content off their platforms or block those senders. Even the revision of the decade-old amended IT Act would have covered the intermediaries’ role closely considering the technology enablement since the last revision.

In turn, law enforcement agencies need to take action against fake-content generators and transmitters and for that, their capacity has to be widely expanded both in terms of numbers and quality. Some State police forces made arrests recently, but there is a wider need also to look at the existing laws to directly address fake news.

A big section of the digital society would have vouched for an industry-wide self-censorship and weeding regime. In mid-February, such an attempt was announced by a few of the major intermediaries operating in India, such as Facebook and Google, about forming an Information Trust Alliance (ITA) to weed out fake content. This is the time to shape it further and give it more substance and teeth. The fake news flow around Covid-19 gives them more reasons to be seen to be more responsible. They need to expand their network of fact-checkers, which these intermediaries employ individually, till they come with an optimal arrangement.

RULES AND LEGAL PROVISIONS IN INDIA

Rumours are a lethal weapon that affects the morale of the people. The Law enforcement agencies have power under law to take legal action against anyone who spreads rumours about the virus and causes a state of panic among the general population. Even though, at present, India does not have a specific law to deal with crime of fake news but we still have existing legal provisions under Indian Penal Code, 1860 Information technology Act,2000 and the Disaster Management Act,2005 which can be invoked in case of misinformation. Some existing legal provisions are

Section 505(1) of Indian Penal Code, 1860:The punishment for making, publishing or circulating any statement, rumour or report which may cause fear or alarm to the public, or to any section of the public.
Punishment: It may lead to Imprisonment which may extend to 3 years or fine or both.

The Indian constitution: Article 21 of the constitution protects an individual’s right to life and personal liberty. The supreme court of India, a nine judge bench decision in august 2017, held that citizens enjoy a fundamental right to privacy that is intrinsic to life and liberty. It must be noted that rights guaranteed by the constitution may normally only be used against the state or state owned enterprises.

Section 66D of Information Technology Act,2000: Whoever, by means for any communication device or computer resource cheats by personating.
Punishment: It may lead to imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to one lakh rupees.

Section 69 (1) of the Information Technology Act, 2000: Relate to how the Controller can extend decryption of information facilities to any agency for intercepting any information transmitted through any computer resource. The person-in-charge of the computer resource shall, when called upon by any agency directed under Section 69 (1), extend all facilities and technical assistance to decrypt the information.

Punishment: Any person who fails to assist the agency referred to in Section 69 (2) shall be punished with imprisonment for a term which may extend to seven years.

Section 54 of the Disaster Management Act, 2005: Whoever makes a false alarm or circulates it or warning as to disaster or its severity or magnitude of disaster, leading to panic.
Punishment: It leads to Imprisonment which may extend to one year or with fine.

Some recent actions taken by the authorities around the world:
Maharashtra: The Maharashtra police has registered as many as 51 cases across the state against various individuals spreading fake news, rumours and false or fraudulent claims concerning the pandemic. In one specific case a newspaper advertisement dated March 13, claiming that the mattresses could cure Covid-19 resulted in an FIR being registered against the owner of mattress company.

Uttar Pradesh, Lucknow: A fake Godman Ahmad Siddiqui calling himself as "Corona Wale Baba" claimed that those who could not wear a mask could use the talisman to keep corona away. He has been arrested for fraud and forgery.
Odisha: A man has been arrested for posting false information on Facebook regarding a Kerala-returned person who had tested positive for coronavirus and was under treatment in Rayagada.

PRIVACY IS IMPORTANT

As for privacy violations by sensitive data circulation online, the Personal Data Protection Bill 2019 (PDPB) is likely to be taken up in the monsoon session of Parliament if the select committee can complete its task. However, it may be mentioned that in August 2018 the Ministry of Health and Family Welfare (MoHFW) had released a draft ‘charter of patient rights’ which had factored in the privacy of medical records of patients.

This was just after MoHFW had drafted the ‘Digital Information Security in Healthcare Act’ (DISHA) and offered it for public comments in March 2018. DISHA was intended to specifically look at the data privacy and confidentiality of digital health data. However, DISHA was subsumed under the PDPB, which is intended to be an encompassing legislation around privacy covering every ministry and situation. It is pertinent to mention here that medical records would be a ‘sensitive personal data’ under PDPB as it is today as defined under the Rules notified under the IT Act in April 2011, and such data cannot be circulated without the explicit permission of the provider.

CONCLUSION

India has laws and rules to deal with fake news and sensitive personal data circulation online. Efforts are being made to enhance their scope and make them more effective. People before creating, posting, sharing and forwarding any message, one needs to be aware about the implications of the same. The Law enforcement agencies are monitoring such posts on social media platforms and can land you in a legal battle or jail.

The IT Act and the rules around the Act have an expansive scope to factor in many situations of violations. In the current situation, there is the additional advantage of the provisions of Section 54 of the Disaster Management Act 2005 (DMA) — which deals with false warnings around a disaster leading to panic.

The circular of the MHA also mentions the applicability of Sections 505 and 188 of the Indian Penal Code. Using these provisions, several people have been arrested across States in the recent times of corona. However, these actions still can’t match the pace at which people post and forward fake posts and violate privacy. The need of the hour is a cocktail of stricter law enforcement as well as an awareness drive through constant messaging and foster and inculcate cyber manners.

MY OPINION

In my opinion Individuals are expected to exercise a higher degree of caution in relation to forwarding of fake information and circulating sensitive data. A small indiscretion of forwarding an unverified message can lead to loss of life or cause a serious disturbance of public order. With governmental and public resources pushed to limits, it is incumbent upon the general public to perform diligence in their interactions with reference to the Pandemic. There are some simple steps that can be undertaken by one and all which will lead to a thwarting of mischievous designs and attempts to cause disruption.

In my opinion awareness can be taken as a solution to this problem. One of the most significant factors leading to a broader consumption of fake news among users is their limited ability to differentiate facts from opinions. Lack of aptitude of the audience to verify the news shared on social media before consuming is leading them to consume potentially false information. To enable them to do so would require a concrete measure in terms of enhancing their media literacy. In India, awareness campaigns have been released by service providers to alert users about the consequences of fake news and why it is important to be self-aware before forwarding any message.  In December 2018, WhatsApp rolled out three ad films as a part of their strategy to fight back circulation of fake news ahead of general elections these campaigns asked the users to check the integrity of the information they receive on forward messages, before sharing it to others.

Purpose of any news is to make people aware of what is happening around and allow people to have a common ground to converse to constitute a dynamic public sphere. Social media, with its popularity, and instantaneity, is a potent tool for communication development if used. Otherwise, it could also become a double-edged sword. Fake News has become a menace which could only be curbed when collective efforts are made from individual to policy level.


Nelson Vincent
Nelson Vincent
Nelson Vincent is a lover of God, Law and Tech. He engages in Content and Copy Writing, Social Media Management, Digital Marketing, Designs and Programming.

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