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Misinformation & Fake News

INSIGHTS > MISINFORMATION

Continuing the fight against misinformation and fake news the Ministry of Electronics & Information Technology (MEITY) continues to issue take down orders to all social media companies for removing several social media posts across the country, which the government considers fake or misleading.

 

Facebook has disclosed that it restricted 878 items in India from July-Dec 2020 on requests made by government.

 

This week MEITY issued takedown orders to all social media companies against any content that refers "Indian variant of the coronavirus. This was triggered when WHO in a statement said that the coronavirus variant B.1.617, first identified in India last year, was being classified as a variant of global concern.

 

State governments are also pursuing criminal cases against citizens who are criticizing them on social media over provision and management of healthcare facilities. Supreme Court in an ongoing matter has also condemned these state actions and termed them illegal, further warning the governments of such actions and stating that the same will be considered contempt of Supreme Court.

 

In another incidence a BJP national spokesperson’s tweet on alleged ‘Congress toolkit to defame government’s COVID-19 efforts’ was labelled and tagged as ‘manipulated media’ by Twitter under one of its flagging policy. Followed this was a government order on Twitter to remove the flag ‘manipulated media’ stating the reason that the an is investigation before a law enforcement agency over this matter.

 

 

Till the time such newly acquired powers by the government under the IT Rules 2021 notified recently, are thoroughly analyzed by constitutional courts in India, some see the current scenario as an enormous threat to free speech and a major concern for social media companies.

 

Such a ‘Keyword Based Censorship’ approach is also likely to pose difficulties for social media companies, as there are hundreds of thousands of such posts made every day.

 

The limitation of liability for social media companies and other intermediaries under the legal doctrine of ‘Safe Harbor’ also seems to be under serious threat in these circumstances. Social media companies, news publishers and other intermediaries seeking to minimize legal risks associated with fake news or misinformation can take the following proactive steps:

 

NOTICES & DISCLAIMERS

While determining an intermediary’s liability for misleading or fake news, the courts often see whether the publisher portrays itself as a source of fiction, parody, or satire. Therefore, intermediaries can mitigate legal risks by crafting appropriate language in notices and disclaimers, and place the such disclaimers conspicuously on their online platforms. They can also include appropriate copyright notice on their Web sites, original articles, artwork, and other creative materials to inform the public that such works are protected by copyright.

 

WEB SITE TERMS & CONDITIONS AND PRIVACY POLICIES

A well drafted Terms and Conditions including appropriate notices, restrictions, liability disclaimers, governing law, and other important legal guidelines can be extremely helpful in limiting your liability as an intermediary.

Read More[Tuhin1] .

 

MEDIA LIABILITY INSURANCE

There are several insurance companies in India that offer media liability insurance policy options for writers, including online publishers. These underwriters offer several protections against many liability claims publishers or other intermediaries may face including defamation, intellectual property infringement and violations of the right of publicity. As there is a substantial risk of legal liability associated with intermediaries, news publishers, it is advisable to obtain an appropriate media liability insurance coverage.

 [Tuhin1]“Chilling effects” alleged to be produced by the imposition of restrictions as discussed above.

Chilling effect has been utilized in Indian Jurisprudence as a fairly recent concept. Its presence in the United States of America can be traced to the decision in Weiman v. Updgraff, 344 U.S.

 

We may note that the argument of chilling effect has been utilized in various contexts, from being purely an emotive argument to a substantive component under the free speech adjudication. The usage of the aforesaid principle is chiefly adopted for impugning an action of the State, which may be constitutional, but which imposes a great burden on the free speech. We may note that the argument of chilling effect, if not tempered judicially, would result in a “self­ proclaiming instrument”.

 

The principle of chilling effect was utilized initially in a limited context, that a person could be restricted from exercising his protected right due to the ambiguous nature of an overbroad statute. In this regard, the chilling effect was restricted to the analysis of the First Amendment right. The work of Frederick Schauer provides a detailed analysis in his seminal work on the First Amendment. This analysis was replicated in the context of privacy and internet usage in a regulatory set up by Daniel J. Solove. These panopticon concerns have been accepted in the case of K.S. Puttaswamy (Privacy­9J.)

 

We need to concern ourselves herein as to theoretical question of drawing lines as to when a regulation stops short of impinging upon free speech. A regulatory legislation will have a direct or indirect impact on various rights of different degrees. Individual rights cannot be viewed as silos, rather they should be viewed in a cumulative manner which may be affected in different ways. The technical rule of causal link cannot be made applicable in the case of human rights. Human rights are an inherent feature of every human and there is no question of the State not Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the Chilling Effect (1978).

 

 providing for these rights. In one sense, the restrictions provided under Article 19(2) of the Constitution follow a utilitarian approach wherein individualism gives way for commonality of benefit, if such restrictions are required and demanded by law. In this context, the test of ‘direct impact’ as laid down in A.K Gopalan v. State of Madras, AIR 1950 SC 27, has been subsequently widened in Rustom Cavasjee Cooper v. Union of India, 1970 (1) SCC 248, wherein the test of ‘direct and inevitable consequence’ was propounded. As this is not a case wherein a detailed analysis of chilling effect is required for the reasons given below, we leave the question of law open as to the appropriate standard for establishing causal link in a challenge based on chilling effect.

 

The widening of the ‘chilling effect doctrine’ has always been viewed with judicial scepticism. At this juncture, we may note the decision in Laird v. Tantum, 408 U.S. 1 (1972), wherein the respondent brought an action against the authorities to injunct them from conducting surveillance of lawful and peaceful civilian political activity, based on the chilling effect doctrine. The United States Supreme Court, in its majority decision, dismissed the 
plea of the respondent on the ground of lack of evidence to establish such a claim. The Court observed that:

“Allegations of a subjective "chill" are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Therefore, to say that the aforesaid restrictions were unconstitutional because it has a chilling effect on the freedom of press generally is to say virtually nothing at all or is saying something that is purely speculative, unless evidence is brought before the Court to enable it to give a clear finding, which has not been placed on record in the present case. [refer to Clapper v Amnesty Int’l, USA, 568 U.S. 113 (2013)]

 

In this context, one possible test of chilling effect is comparative harm. In this frame­work, the Court is required to see whether the impugned restrictions, due to their broad­based nature, have had a restrictive effect on similarly placed individuals during the period. It is the contention of the Petitioner that she was not able to publish her newspaper from 06­08­2019 to 11­10­2019. However, no evidence was put forth to establish that such other individuals were also restricted in publishing newspapers in the 
area. Without such evidence having been placed on record, it would be impossible to distinguish a legitimate claim of chilling effect from a mere emotive argument for a self­serving purpose. On the other hand, the learned Solicitor General has submitted that there were other newspapers which were running during the aforesaid time period. In view of these facts, and considering that the aforesaid Petitioner has now resumed publication, we do not deem it fit to indulge more in the issue than to state that responsible Governments are required to respect the freedom of the press at all times. Journalists are to be accommodated in reporting and there is no justification for allowing a sword of Damocles to hang over the press indefinitely.

“Chilling effects” alleged to be produced by the imposition of restrictions as discussed above.

Chilling effect has been utilized in Indian Jurisprudence as a fairly recent concept. Its presence in the United States of America can be traced to the decision in Weiman v. Updgraff, 344 U.S.

 

We may note that the argument of chilling effect has been utilized in various contexts, from being purely an emotive argument to a substantive component under the free speech adjudication. The usage of the aforesaid principle is chiefly adopted for impugning an action of the State, which may be constitutional, but which imposes a great burden on the free speech. We may note that the argument of chilling effect, if not tempered judicially, would result in a “self­ proclaiming instrument”.

 

The principle of chilling effect was utilized initially in a limited context, that a person could be restricted from exercising his protected right due to the ambiguous nature of an overbroad statute. In this regard, the chilling effect was restricted to the analysis of the First Amendment right. The work of Frederick Schauer provides a detailed analysis in his seminal work on the First Amendment. This analysis was replicated in the context of privacy and internet usage in a regulatory set up by Daniel J. Solove. These panopticon concerns have been accepted in the case of K.S. Puttaswamy (Privacy­9J.)

 

We need to concern ourselves herein as to theoretical question of drawing lines as to when a regulation stops short of impinging upon free speech. A regulatory legislation will have a direct or indirect impact on various rights of different degrees. Individual rights cannot be viewed as silos, rather they should be viewed in a cumulative manner which may be affected in different ways. The technical rule of causal link cannot be made applicable in the case of human rights. Human rights are an inherent feature of every human and there is no question of the State not Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the Chilling Effect (1978).

 

 providing for these rights. In one sense, the restrictions provided under Article 19(2) of the Constitution follow a utilitarian approach wherein individualism gives way for commonality of benefit, if such restrictions are required and demanded by law. In this context, the test of ‘direct impact’ as laid down in A.K Gopalan v. State of Madras, AIR 1950 SC 27, has been subsequently widened in Rustom Cavasjee Cooper v. Union of India, 1970 (1) SCC 248, wherein the test of ‘direct and inevitable consequence’ was propounded. As this is not a case wherein a detailed analysis of chilling effect is required for the reasons given below, we leave the question of law open as to the appropriate standard for establishing causal link in a challenge based on chilling effect.

 

The widening of the ‘chilling effect doctrine’ has always been viewed with judicial scepticism. At this juncture, we may note the decision in Laird v. Tantum, 408 U.S. 1 (1972), wherein the respondent brought an action against the authorities to injunct them from conducting surveillance of lawful and peaceful civilian political activity, based on the chilling effect doctrine. The United States Supreme Court, in its majority decision, dismissed the 
plea of the respondent on the ground of lack of evidence to establish such a claim. The Court observed that:

“Allegations of a subjective "chill" are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Therefore, to say that the aforesaid restrictions were unconstitutional because it has a chilling effect on the freedom of press generally is to say virtually nothing at all or is saying something that is purely speculative, unless evidence is brought before the Court to enable it to give a clear finding, which has not been placed on record in the present case. [refer to Clapper v Amnesty Int’l, USA, 568 U.S. 113 (2013)]

 

In this context, one possible test of chilling effect is comparative harm. In this frame­work, the Court is required to see whether the impugned restrictions, due to their broad­based nature, have had a restrictive effect on similarly placed individuals during the period. It is the contention of the Petitioner that she was not able to publish her newspaper from 06­08­2019 to 11­10­2019. However, no evidence was put forth to establish that such other individuals were also restricted in publishing newspapers in the 
area. Without such evidence having been placed on record, it would be impossible to distinguish a legitimate claim of chilling effect from a mere emotive argument for a self­serving purpose. On the other hand, the learned Solicitor General has submitted that there were other newspapers which were running during the aforesaid time period. In view of these facts, and considering that the aforesaid Petitioner has now resumed publication, we do not deem it fit to indulge more in the issue than to state that responsible Governments are required to respect the freedom of the press at all times. Journalists are to be accommodated in reporting and there is no justification for allowing a sword of Damocles to hang over the press indefinitely.

For more on the topic, please get in touch at info@tbalaw.in

Picture Credits to  Markus Winkler on Unsplash

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