How ill-equipped Indian laws are to deal with fake news this election season

Alok Prasanna Kumar February 26, 2019

If it was “paid news” in the 2014 elections, in 2019 it’s all about “fake news”.

With the spread of the internet in India in the last few years and the consequent easy access to social media and messaging apps, there’s concern in some quarters that the outcome of the 2019 elections will be determined (or at least significantly impacted) by an uncontrollable flood of propaganda and fake news.

In a country where innocents have been brutally killed by panicked mobs on the basis of rumours of child kidnappers spread on WhatsApp, this seems a justifiable fear. More so when there are a number of websites pretending to be news websites that peddle all sorts of hateful, communal propaganda with the tacit blessing of the ruling dispensation. According to a Microsoft report, Indian internet users are more likely to have been subjected to fake news than any others.

Should we be worried, therefore, for the sanctity of the upcoming general elections in 2019?

The Internet and Mobile Association of India and Factly carried out an interesting survey that threw up some surprising and some not-so-surprising findings about the fake news phenomenon in India. The most surprising finding perhaps was how only a very small percentage of people are completely swayed by “viral” information on social media. Trust in “mainstream media” is still high — whether for providing actual news or busting fake news. The unsurprising finding was that those below the age of 20 and those above the age of 50 were the most susceptible to falling for “fake news”. Likewise, those newer to the use of internet are more likely to believe “fake news” than those who have used it for a while.

The 15 to 20 years and the above 50 years age groups were found to more susceptible to fake news in the IAMAI-Factly survey.
The 15 to 20 years and the above 50 years age groups were found to more susceptible to fake news in the IAMAI-Factly survey.

There are some caveats to the results of this study — it features only 900 respondents, 80% of whom are male. Given that this survey was carried out in English and over the internet, it might not be entirely representative of the population at large but to be fair to IAMAI and Factly, they are cognizant of the limitations of the conclusions drawn from such a survey.

For whatever it’s worth, the IAMAI and Factly survey does complicate the problem statement when it comes to fake news and elections. News isn’t data and people are not automatons — they respond in different ways to it depending on a number of factors, including, crucially the source of the news. When we ask the government or the election commission to take action against “fake news” during elections, what problem are we really trying to solve?

What is fake news?

One way to approach it is to say that it is not a problem at all. The term “fake news” is itself hugely problematic in its scope and meaning, with many calling for it to be retired as a descriptor for misinformation spread on the internet. For the purposes of understanding this: as long as there are no barriers to others contradicting, questioning or debunking fake news claims, there isn’t much of a role for the state to play in tackling fake news. On the other hand, any intervention by the state may risk disrupting the “free market” in information. There’s a danger perhaps that the state could end up becoming on arbiter of what’s truth and what’s not – a characteristic of totalitarian regimes. Indeed, this has been the basis for censorship laws in many countries around the world such as Russia, Indonesia and Malaysia (which recently repealed its fake news laws).

While doing nothing is an attractive approach to the problem, it does require us to accept that everyone is equally placed in the free market of ideas and information. It does not take into account real-world situations where some voices, by virtue of having access to funds and organisation, are much louder than the others. In the specific context of elections, it would require us to be blind to the fact that some parties have a lot more money than others.

Nearly 30% respondents said they completely or somewhat trust what they hear on social media platforms
Nearly 30% respondents said they completely or somewhat trust what they hear on social media platforms

In the context of the Indian elections, “fake news” sounds a lot like the “paid news” problem that was the subject of much angst earlier this decade. The Election Commission of India’s response has been to target specific candidates and publications which published “paid news” on behalf of a candidate and looking to disqualify them on that basis. This approach received a setback when the Delhi High Court set aside the disqualification of the first legislator to have been sanctioned thus by the EC. Although the Supreme Court has stayed the finding of the High Court on the power of the EC to proceed against a candidate for “paid news”, the fact remains that it is not easy to prove that the candidate has directly or indirectly spent unreported funds on such “paid news”.

The EC’s job is unenviable. While it has to be ever-vigilant to take action against the obviously unlawful speech – hate speech, bribery of voters, appeals to religion/caste/community and such-like – it has to be cautious that it doesn’t end up becoming a censor for all kinds of speech in the name of regulating “fake news”. There is some merit in the Delhi High Court’s observation in the fake news case: the EC’s job is to ensure that elections are conducted in a free and fair manner — not to adjudicate competing claims by political parties, their candidates or third parties.

Seen thus, it’s best if the EC approaches the “fake news” problem purely from a funding perspective, that is, within the larger framework of ensuring that money power (however, it is deployed) does not play a decisive role in election campaigning. Rather than focusing on the content element of fake news (except where it violates existing provisions of the Representatives of the People Act, 1951, the law the governs elections in India), the EC would be better off in trying to unearth who is spending and whether candidates have made adequate declarations.

This approach is not without its limitations, of course. While curbs are placed on candidates’ spending, no such limitations are placed on the spending of political parties. Even if candidate spending were to be tracked, it would still be a uphill task to prove that there was unreported spending on fake news. Given the zeitgeist, it is tempting to focus on the phenomenon of “fake news” and direct our energies on how to “tackle it”, rather than looking at the underlying structural problems with our electoral system which allows parties to use money power to get a decisive advantage in elections.


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