Abstract— This article discusses the challenges faced by fake news and disinformation disseminated through social media platforms in India, and the need for effective legislation and robust regulatory mechanism to deal with the said challenges. A line has to be drawn between the “free speech” that needs to be protected and “disinformation” that needs to be legislated by imposing reasonable restrictions on freedoms of speech and expression. This article, with the aid of Supreme Court judgments on the issue of subordinate legislation, further strives to argue that government’s initiative to legislate the fake news and disinformation through subordinate legislation (Information Technology [Intermediaries Guidelines (Amendment) Rules, 2018) may not achieve the goal as subordinate legislations have their own limitation and cannot travel beyond the scope of enabling Act.
“A lie can travel halfway around the world while the truth is putting on its shoes"
The proverb “A lie can travel halfway around the world while the truth is putting on its shoes” by itself is a perfect illustration of how disinformation works. Attributed to Mark Twain, the quotation instead traces its lineage to a line published centuries ago by the satirist Jonathan Swift. [i] Nonetheless, the proverb has turned into a grim reality in the 21st century with the rise of social media and its misuse to spread Fake news. In the absence of legislation regulating fake news, the stakeholders are confused as to the manner in which the social media platforms (intermediaries)[ii] should provide the information including the names of the originators[iii] of any message/content/information shared on the platforms run by these intermediaries to take action against fake news mongers.
The government tried to plug the legal gap by framing Draft of Information Technology [Intermediaries Guidelines (Amendment) Rules, 2018 (Draft Rules, 2018) under Section 87 of Information Technologies Act, 2000 (I.T. Act). However, the Draft Rules have hit rough weathers due to massive opposition from the stakeholders. The stakeholders have painted the Draft Rules as an attempt to stifle the fundamental rights enshrined in the Constitution by stretching the aims and objectives of the I.T. Act.
Fake News Menace: Threat to Security, Sovereignty and Integrity of India.
There is no acceptable definition of ‘Fake news’ available till date. Key individuals and institutions involved in research over the subject worldwide avoid using the term ‘fake news’ and instead refer to it as ‘disinformation’. Fake news in India broadly refers to disinformation, misinformation or mal-information.
The problem of social media-fuelled rumours is not a new phenomenon in India, but the challenges posed by it are. The progress of innocuous fake news/disinformation on social media platforms into a potent threat to security, sovereignty and integrity of India is alarming. Today, a person posing as a ‘journalist’ can post disinformation on a social media platform and cause a riot and mayhem in any part of the world without being identified or traced. India has faced many such incidents in the past decade where violence was triggered by fake news rumours spread through social media platforms hosted by intermediaries. Incidents like the exodus of north-easterners from Bengaluru to Guwahati following a social media posts suggesting violent attacks on them (2012), Muzaffarnagar riots (2013) and Delhi riots (2020) opens our eyes to the ground reality of the bloodshed and mayhem caused due to rumours spread on social media.
To deal with the fake news menace, Indian government has implemented several measures like issuing advisories to the intermediaries, internet blockades (Kashmir, during revocation of Article 370 and Delhi during Anti-CAA protests) and encouraging Fact-check websites to educate people about the veracity of the information received on social media. However, the governments initiative to tackle the fake news menace is turning out to be counterproductive. Rumour mongers often accuse the fact check accounts of bias in their quest for verifying the information. The perpetrators of fake news, overwhelm the readers with the flood of information, making it difficult for them to differentiate between fact and fiction. Internet blockades undermine the global image of India as a vibrant democracy[iv]. In the absence of a legal framework, none of the endeavours of the government, including self-regulation by social media platforms, has put brakes on the propagation of fake news on social media.
Rajya Sabha admitted a calling attention motion on the “Misuse of Social Media platforms and spreading of fake news” in Monsoon session of 2018. Minister for Electronics and I.T. while responding to the said motion on 26th July 2018, conveyed to the house, that the government has resolved to strengthen the legal framework by making the social media platforms accountable under the law.
The enormity of the problem faced due to fake news menace reflects from the recent observations of the Supreme Court. During protests against Citizenship Amendment Act (CAA), the Supreme Court asked government to consider a plea for publicising aims, objectives and the benefits of CAA to weed out fake news that was being circulated on the social media. [v] During the COVID 19 pandemic, the Supreme Court observed that panic generated by fake news would destroy more lives than the virus. The Supreme Court asked the Central government to set up a portal within 24 hours for the dissemination of real-time information on the coronavirus pandemic to counter the panic being spread through fake news.
Inability to track and trace the originator of the disinformation posted on social media platform due to end-to-end encryption provided by the intermediaries is one of the primary reasons for the failure of endeavours undertaken by the State to confront the fake news menace. Robust legislation and regulatory mechanism catering to the issue of traceability and decryption is the need of the hour. MeitY tried to confront this problem by proposing enactment of the Information Technology (Intermediaries Guidelines) Rules, 2018, which provided a regulatory mechanism for enabling traceability and decryption.
Information Technology (Intermediaries Guidelines) Rules, 2018: Can Subordinate Legislation Achieve the Purpose?
Social media platforms and its users respectively fall under the definition of intermediaries and originators, covered by the I.T. Act, 2000. The I.T. Act, 2000 was enacted with threefold objective, firstly to provide legal recognition for e-commerce and e-transactions, secondly to facilitate e-governance and thirdly to prevent computer-based crimes and ensure security practices and procedures.
Section 79 of the I.T. Act elaborates on the exemption of intermediaries (social media platforms in case) from liabilities in certain instances. Section 79(2) (c) stipulates that intermediaries must observe due diligence while discharging their duties and observe compliance under guidelines prescribed by the Central government. Accordingly, by exercising powers delegated under Section 87 of the I.T. Act, MeitY framed “Information Technology (Intermediaries Guidelines) Rules, 2011”. Technological advances over a period of time made the 2011 Rules obsolete in dealing with the menace of fake news effectively. The advance technology provided end-to-end encryption to social media users, making it difficult for law enforcement agencies to trace and decryption the social media content and its originator.
After facing heat from all quarters regarding its inability to deal with the fake news menace, MeitY proposed to replace the 2011 Rules, by Information Technology (Intermediary Guidelines) Rules 2018, which is still under the stage of consideration after receiving comments and suggestions from all stakeholders.
The comments and suggestions received from stakeholders on Draft Rules, 2018, apart from other issues, oppose the Draft Rules on the reasonable ground of MeitY exceeding its power of delegation. Being a Subordinate Legislation, Draft Rules, 2018, fails to adhere to principles operating in the field of subordinate legislation. The basic principle to which subordinate legislation should conform are (i) the parent Act (under which the power to make subordinate legislation is exercised) must be valid, ii) The delegation clause in the parent Act must be valid, (iii) The statutory instrument so made, must conform with the delegation clause, in point of (a) substance; (b) procedure; and (c) form, (iv) The statutory instrument must not violate certain general norms laid down by judicial decisions, e.g., norms regarding the ouster of court jurisdiction, imposing a penalty or tax, giving retrospective effect, etc. and (v) The statutory instrument must violate none of the fundamental rights protected by the Constitution. [vi]
MeitY failed to observe that they should prepare the Draft rules within the framework of the I.T. Act and supplement the Act by filling out the details rather than supplanting it by creating obligations beyond its intent and scope. Section 79 of the I.T. Act stipulates that the intermediary will not be held liable for any information hosted by them if they comply with the requirements as per the law. In other words, Section 79 grants conditional immunity to the intermediaries from third-party contents. However, the Draft rules create new obligations on intermediaries to monitor content under draft Rule 3(9) proactively or to enable traceability under draft Rule 3(8) which are beyond the scope of the Act itself.
In St. Johns Teacher Training Institute v. Regional Director, NCTE, Supreme Court held that “the power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. Rules cannot be made to supplant the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up details. The Legislature may, after laying down the legislative policy confer a discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of policy. The need for delegated legislation is that they are framed with care and minuteness when the statutory authority making the Rule, after coming into force of the Act, is in a better position to adapt the Act to special circumstances. Delegated legislation permits utilisation of experience and consultation with interests affected by the practical operation of statutes.”
Apart from acting beyond the scope of its enabling Act, Draft Rules, 2018, also tends to curtail the fundamental rights of the stakeholders. Although State has the power to impose ‘reasonable restrictions’ on the rights guaranteed under the Part III of the Constitution, same cannot be imposed by the executive (MeitY in this case) through subordinate legislation but by promulgating primary legislation by the Parliament. Instances (not exhaustive) of draft rules illustrating infringement of fundamental rights are enumerated below:
- Rule 3(5) casts an obligation on the intermediaries to enable tracing out of originator of content posted on its platform as may be required by government agencies, who are legally authorised. Majority of the intermediaries are providing encrypted services to their users, to comply with the proposed obligation, an intermediary is required to disallow end-to-end encryption and provide details. If this Rule is enacted as it is, it will tantamount to violation of the right to privacy of a person affirmed by the Supreme Court as an essential core fundamental right protected under Article 21 of the Constitution in K.S. Puttaswamy vs U.O.I (privacy 9j). [vii]
- It would not be farfetched to say that the proposed Rule also violates the fundamental right to privacy and freedom of speech and expression guaranteed by the Constitution under Article 19(1) (a). Disallowing end-to-end encryption will give rise to surveillance regime by empowering government to silence anyone on social media by mere executive action.
- Rule 3(8) proposes that “intermediaries shall preserve information about unlawful acts relatable to Article 19(2) for at least 180 days for investigation purposes or for such longer period as may be required by the court or by government agencies who are lawfully authorised”. Firstly, such an open-ended data retention provision has been held to be disproportionate and unconstitutional by the Supreme Court in the judgement of K.S. Puttaswamy vs UOI (Aadhar 5j) [viii]. Secondly, the Rule is in direct conflict of the Supreme Court’s decision in Shreya Singhal v. Union of India[ix] which held that actual knowledge is only said to accrue to the intermediary when it is informed of a court order or under asking it remove certain content.
- Rule 3(9) proposes intermediaries to deploy technology-based automated tools or appropriate mechanisms, with appropriate controls, to proactively identify and remove or disable public access to unlawful information or content. The Rule, as proposed, will give unbridled power to the intermediaries to decide what constitutes unlawful information or content and b) what are the appropriate controls. The power to intermediaries to resolve such issues with lead to unwarranted censorship infringing upon the fundamental rights guaranteed under the Constitution.
- The scope of the term ‘unlawful’ to define acts or speech is not specified in draft rules 3(2) (b), 3(8) and 3(9) and used inconsistently throughout the Rules and may lead to it being broadly interpreted. In Shreya Singhal v. Union of India (supra), the Supreme Court specified that “unlawful acts” in Section 79(3) (b) of the I.T. Act would have to conform to Article 19(2) restrictions. However, the proposed Rule 3(9), which requires Internet intermediaries to monitor their platforms for unlawful content proactively, does not reflect this restriction.
From the above illustrations, one can get a fair idea that the Draft Rules, 2018 do not adhere to the principles applicable to subordinate legislation. On the other hand, it proceeds to perform an essential legislative function by curtaining the fundamental rights guaranteed under the Constitution and supplanting the I.T. Act, 2000 by creating new obligations beyond the scope of the enabling Act.
Legislating Fake News: Drawing Line between Free Speech and Disinformation.
It is not that the above restrictions and obligations proposed by the government in the Draft Rules, 2018 will not help in curbing the fake news menace, but, it just cannot be done by imposing those restrictions and obligations through subordinate legislation. Subordinate legislation cannot travel beyond the scope of the enabling Act and infringe upon the fundamental rights guaranteed under the Constitution. Therefore, the government must perform its legislative function and frame primary legislation after thorough scrutiny by the Parliament and fix liability on the perpetrators.
The issue of traceability of the originator and decryption of the content of the message on the social media platform is a sensitive matter. There is a fine line between “free speech” that needs to be protected and “disinformation” which needs to be legislated. Ministry of Information and Technology has desperately tried to answer traceability and decryption in the Draft Rules, 2018, however, as discussed above the Draft rules is not free from its flaws.
Although the line between free speech and disinformation is blurred and difficult to interpret, but it is not entirely impossible to draw a definitive distinction between them. Article 19(1) (a) of Constitution guarantees fundamental rights to freedom of speech and expression to citizens. However, it also carves out exceptions enabling government for making laws to impose ‘reasonable restrictions’ on such rights for the interests of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or concerning contempt of court, defamation or incitement to an offence. Similarly, Article 21 of the Constitution while guaranteeing that no person shall be deprived of his life or personal liberty, creates an exception for imposing restrictions procedures established by law. The government has to strike a fine balance between the freedom guaranteed under Article 19 (1) (a) and social controls permitted under Article 19 (2) of the Constitution.
The recent surge of fake news and disinformation shared on social media platforms hosted by intermediaries have transgressed all the boundaries of social control, as mentioned in Article 19 (2). Due to the recent threats on sovereignty and integrity of India by the fake news spread on social media, it has become necessary on the part of the government to rise to the occasion and promulgate primary legislation by adopting robust law-making process involving nuanced technical debate by parliamentary subject committees and deliberations on the floor of the house. While doing so, the government must ensure that the fundamental right of privacy and free speech is not invaded by weakening the law relating to de-encrypting of messages and should strive to strike a fine balance between the sovereignty and integrity of the State and protecting the constitutional rights of individuals.
Unfortunately, the government is responding to the problem by knee-jerk reaction of enacting subordinate legislation in the form of Information Technology (Intermediaries Guidelines) Rules, 2018. An affidavit filed by the Ministry of Information and Technology (MeitY) before the Supreme Court in Transfer Petition (s) (Civil) No (s).1943-1946/2019 confirms the said fact.
Supreme Court of India through various judgements have clarified the position of law on subordinate legislation and held that the government could not delegate its essential legislative functions to the executive.
In Re: The Delhi Laws Act, the Supreme Court held that Constitution having conferred a power and imposed a duty on the Legislature to make laws, the Legislature cannot abdicate or efface itself. The Legislature alone must perform the essential legislative function and the essential powers of legislation cannot be delegated. The essential legislative function consists in the determination or choice of the legislative policy and its formulation as a rule of conduct. The Legislature cannot, therefore, delegate to an extraneous authority its function of laying down legislative policy in respect of a measure and of formally enacting that policy into a binding rule of conduct. That must be done by the Legislature itself. [x]
In Rai Sahib Jawaya Kapur Vs. State of Punjab[xi], Supreme Court held that the executive government are bound to conform not only to the law of the land but also to the Constitution. The Indian Constitution is a written Constitution and even the Legislature cannot override the fundamental rights guaranteed by it to the citizens. Consequently, even if the acts of the executive are deemed to be sanctioned by the Legislature, yet they can be declared to be void and inoperative if they infringe any of the fundamental rights of the petitioners guaranteed under Part III of the Constitution.
Fake news is a multifaceted challenge which requires to be dealt with multi-dimensional, legislative and non-legislative approach from all the stakeholders. However, in the absence of legislation dealing with traceability and decryption for fixing liability on the perpetrators, the non-legislative approach is doomed to fail. The fourth pillar of democracy, i.e. mainstream media (print, television, radio), is already facing severe credibility crisis from the fake news and disinformation spread on social media. Sovereignty and integrity of India may be next in line. Before the words of wisdom are drowned in the cacophony of distort, effective primary legislation after a thorough scrutiny of parliamentary process is the need of the hour to draw a definitive line between free speech and disinformation and curb the menace of fake news in India.
[ii] Social media platforms fall under the definition of Intermediaries as defined under Section 2(w) of the Information Technologies Act, 2000.
[iii] Section 2(za) of IT Act, 2000.
[vi] Subordinate Legislation: Scrutinising the Validity- P. M. Bakshi published in Journal of the Indian Law Institute, Vol. 36, No. 1 (January-March 1994), pp. 1-7
[vii] 2017(10) SCC 1.
[viii] 2019 (1) SCC 1
[ix] 2015(5) SCC 1
[x] 1951 AIR 332.
[xi] AIR 1955 SC 549.
Biography: Akhilesh Sheshmani Dubey is litigator based in Mumbai and practicing in Bombay High Court. He is admitted as a Solicitor of Supreme Court of England and Wales. He can be reached on his email: firstname.lastname@example.org