In an attempt to increase media accountability, India’s information technology ministry recently issued a notice to WhatsApp, calling for stricter regulation in identifying fake news. The ministry stated that mediums which facilitate fake news as “mute spectators” could potentially face liability for abetting fake news, which may invite legal action.
Importantly, this statement was issued after WhatsApp created a new feature which notifies the recipient of a text message if the text is a forwarded one and not an original creation of the sender. Since misinformation is often spammed across large groups on WhatsApp, this feature could be extremely helpful in raising awareness of the nature of the received text.
While it was too early to test its effectiveness, the IT ministry’s statement shows that the government has already dismissed its adequacy.
Perhaps in response to this, WhatsApp has announced that it will impose a cap on the number of chats a user in India can forward messages to. It has also removed the ‘quick forward’ feature.
Fake news disseminated through WhatsApp forwards has caused significant harm. A series of individuals have been lynched across the country on the suspicion of being child-abductors, based only on messages that went viral on WhatsApp.
Instead of dealing with lynching as a crime in itself, however, the government has chosen to focus its attention on regulating the alleged cause of lynching: fake news.
A perusal of recent events indicates that the Centre is adopting a two-pronged strategy to regulate fake news: On the one hand, it is placing responsibility for fake news on the platform that disseminates it, as opposed to the person(s) who create it. On the other, it is starting to make a demand for increased access to the data handled by the disseminating platform, ostensibly to identify and effectively regulate fake news.
There are several shortcomings of this approach.
What offence would WhatsApp ‘abet’?
The steady replacement of print media with digital forms has made the concept of news increasingly amorphous, raising concerns relating to what constitutes fake news in the first place; a question that precedes the attribution of resulting liability. Admittedly, there is a need for self-regulators to further reorient themselves in order to allay these concerns.
However, treating a medium as an abettor raises several concerns, the gravest being the marked absence of the specific offence which WhatsApp will be abetting. The statement issued by the IT ministry seems to indicate that the offence is that of ‘rumour propagation’.
While the words ‘fake news’ find no mention in the voluminous corpus of Indian law, the provision that comes closest to punishing it is Section 505 of the Indian Penal Code (IPC), 1860. This provision punishes the making, publication, or circulation of any ‘statement, rumor or report’ that is likely to cause ‘fear or alarm to the public…whereby any person may be induced to commit an offence…against the public tranquility’.
The provision goes on to carve out a ‘good faith’ exception, according to which the offence is not made out when ‘the person making, publishing, or circulating any such statement, rumour or report’ has done so in good faith, believing it to be true.
While it is uncertain whether WhatsApp, if charged with abetting the offence under Section 505, can claim this defence, a huge section of individuals who forward messages carrying fake news can undoubtedly invoke the exception of good faith.
Section 66A of the Information Technology Act, which was struck down by the Supreme Court in 2015 for being ultra vires the constitution, came even closer to punishing the dissemination of fake news.
Section 66A(b) punished a person for sending ‘any information which he knows to be false…for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will’. In its decision in 2015, the Supreme Court termed this provision ‘open-ended, undefined, and vague’, and repealed it from the statutes.
The court stated that any penal law that fails to define the offence with precision is liable to be struck down. “Ordinary people should be able to understand what conduct is prohibited and what is permitted. Also, those who administer the law must know what offence has been committed so that arbitrary and discriminatory enforcement of the law does not take place,” the court said.
When seen in light of the fake news debate, this decision attains renewed relevance. In failing to mention the specific offence which WhatsApp can be said to have abetted, the statement issued by the IT ministry suffers from the same defects of vagueness and uncertainty.
Without the mention of a specific offence, no formal charge can be levelled. WhatsApp, as a potential target of government sanctions, has a right to know which provision of penal law it might violate as an abettor.
Owing to the lack of consensus on the definition of fake news, and the impossibility in defining the contours of an associated offence without introducing an element of bias, it is highly unlikely that charging WhatsApp as an abettor is a workable strategy at this point.
Unaccompanied by a description of which specific offence WhatsApp will be abetting, the IT ministry’s position puts the cart before the horse. In addition to this, the more sinister prospect of indirect regulation must also be kept in mind.
One of the foremost problems associated with a state-centric determination of the effectiveness of regulatory abilities of social media platforms is that it may not be bereft of bias.
This is because the determination of falsity involves the separation of opinions, facts and the truth. Harmless discussions or purely satirical texts could be conceived as fake; and as a result, subjected to censure. For instance, an opinion that demonstrably attributes liability to the state for acts, mass-shared on WhatsApp, could be regarded as ‘fake’; and WhatsApp’s inability to restrict the dissemination a form of abetment. To put it simply, 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 government.
State intervention in the nature of sanctions against social media forums can amount to arbitrary and overbroad regulation, chilling free speech and raising serious concerns of privacy.
Increased demand for access to data: a privacy concern
This form of state-control may result in raising serious privacy-related concerns arising out of potential forms of surveillance over texts on WhatsApp. It would be fair to presume that the state’s ability to monitor social media discourse would require access to all forms of data shared on WhatsApp. In order to ensure such access, WhatsApp would have to be mandated to actively share data with the Government. While an individual (data subject) may be comfortable sharing her data with private players for specific purposes, the same level of comfort may not exist when this data is shared with the Government.
This could be due to various reasons, security concerns being the foremost.
At present, the data protection framework in India does not sufficiently safeguard retained data (collected and stored for specific periods of time). While the ISP licence and the Unified Access Service Licence (grounded in the Telegraph Act) stipulate minimum retention periods, there is no unambiguous obligation imposed on telecom licensees (or, all data controllers for that matter) to delete or anonymise stored data. Individuals (requiring access to social media platforms) can be further be forced by data controllers such as WhatsApp to agree to click-wrap privacy policies. These may coerce data subjects to part with their data at the government’s disposal. In fact, the government’s insistence on access to data has been steadily increasing, reportedly rising to 62% in 2017 in contrast to the average across the globe of 30%, ranking second in highest number of requests for data to Facebook.
To take another example, the government recently planned to monitor social media users individually to gauge opinions about official policies. This is further highlighted by its suggestion to the RBI to allow cross-border transfers of data so long as a copy of this data is stored locally within India; placing emphasis not on protecting data against leakages abroad in-so-much as being able to avail this data whenever necessary. Such access could lead to making real-time state surveillance of WhatsApp conversations possible, potentially crippling dissent resulting from fear of censure. Most countries except China and India statutorily place limits on the duration of access or surveillance and the use of information that is obtained by the government. These statutes are premised on the principle of particularity – they allow surveillance of a particular target. When seen in light of the proposed treatment of platforms like WhatsApp as abettors in the dissemination of fake news, the government’s increasing demands for access to data crystallise the chilling effect.
Although WhatsApp’s restriction on text-forwarding does not fall within the traditional understanding of the chilling effect, it indicates that WhatsApp is compromising on its ease of usage in response to Government censure.
Overlap of regulatory jurisdictions
The IT ministry’s statement also does not synchronise with a report by India’s telecom regulator published last week on ‘Privacy, Security and Ownership of Data in The Telecom Sector’.
The report suggests that ‘data controllers’ should be obligated to share personal and sensitive personal data with entities that ensure the same level of protection that is applicable to the data controller. It also suggests that explicit consent should be a mandatory requirement to transfer data belonging to consumers. The absence of sync between TRAI and the government seems more evident through the publication of this report while the Srikrishna Committee report on data protection is still pending release.
This can cause considerable confusion in identifying the regulatory authority to which data controllers such as WhatsApp would be answerable.
The way ahead
Only months ago, the government tried to address the fake news issue by threatening to suspend journalistic accreditation if certain rules regarding dissemination of fake news were violated. But in the face of ensuing protests by various sections of the media, who saw it as an unreasonable restriction on journalistic freedom, the ministry circular was withdrawn.
It is undisputed that the scourge of fake news merits regulation. In meeting with this need, however, the nature and degree of regulation must be carefully considered.
Defining ‘fake news’ and delineating an associated offence of abetment will only be possible once there is broad consensus relating to its meaning. Until then, threatening to treat WhatsApp as an abettor cannot achieve any substantial results. Insofar as access to data is concerned, the government has to tread carefully keeping in mind privacy-related concerns.
Aditya Prasanna Bhattacharya is a third year student of National Law School of India University (NLSIU), Bangalore. Siddharth Sonkar is a penultimate year student of National University of Juridical Sciences (NUJS), Kolkata.