Nandan D. & Archana B.
Introduction
In the modern digital era, a situation of an ‘infodemic’ is created by an influx of information from a range of sources. Unfortunately, however, this has also led to an increase in false information that, as revealed by a 2018 study undertaken at the Massachusetts Institute of Technology, spreads faster and deeper than truth. This ultimately leads to the truth being driven out and replaces the character of discussion from ‘truth seeking’ to the ‘loudest voice’.
While Part-I of this two-part series compared the Indian legal framework and the international efforts to combat disinformation and misinformation, Part-II explores the evolving interpretation of the theory of ‘marketplace of ideas’ and its contemporary challenges in the digital age before delving into the jurisprudence on the citizens’ right to accurate information on government affairs. It discusses the importance of an accountable Fact-Check Unit (FCU) to prevent an ‘alienated citizenry’ while cautioning against potential governmental misuse for pushing one-sided propaganda.
Traditional Interpretation of Article 19(1)(a)
The interpretation of freedom of speech and expression under Article 19(1)(a) permitting a ‘marketplace of ideas’ as elucidated in judgments such as Bennett Coleman v. Union of India (1972), finds its origins from the dissent of Justice Oliver Wendell Holmes in Abrams v. United States (1919),as he highlights the true scope of the First Amendment of the Constitution of the United States. This theory postulates that just like how the competitive market forces of demand and supply determine the best good in the market, the free exchange of ideas will ultimately lead to the prevalence of truth, or rather, the best ideas.
Drawing from this theory, the Supreme Court in Amish Devgan v. Union of India (2020), has extended the protection of Article 19(1)(a) to false, puissant, or deceptive dissent or criticism of the government’s policies, while observing that the government should be free from adjudicating what is true or false, good or bad, valid or invalid, which are matters for discussion in public domain.
Such a position of law would mean that disinformation and misinformation are a part of this marketplace and can only be overcome only by more speech. It is on the strength of this interpretation of Article 19(1)(a) that the verdict of Justice G.S. Patel and Justice A.S. Chandurkar (tie-breaker judge) of the Bombay High Court held the establishment of the FCU under Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, (IT Rules, 2021), as unconstitutional.
Reformed Approach to Article 19(1)(a)
Per contra, while Justice N.K. Gokhale also agrees on the applicability of the theory of ‘marketplace of ideas’ to Article 19(1)(a), the deliberate conveyance of patently false or fake information with mala fide intentions is to be excluded from Article 19(1)(a).
Justice Gokhale’s opinion finds concurrence with the Former Chief Justice of India, Dr. D.Y. Chandrachud’s address on ‘Upholding Civil Liberties in the Digital Age: Privacy, Surveillance and Free Speech’ at the 14th Justice V.M. Tarkunde Memorial Lecture. Dr. Chandrachud argued that fake news is not a part of the marketplace of ideas since the marketplace exists only when there is an agreement on the veracity of basic facts.[i] Article 19(1)(a) seeks to protect the ‘marketplace of ideas’ – a forum for discussion, debate and dissent on existing facts – and not the ‘marketplace of facts’. While there cannot be a marketplace of facts, disinformation and misinformation seeks to create one and thereby, erode the stability of the foundation of a democratic polity, viz., truth.
This view also resonates with that of Justice K.V. Viswanathan, expressed in his lecture on ‘Emerging Areas that Impact Law & Legal System’ at the Justice Krishnamoorthy Iyer Memorial Oration, who cautioned on the dangers of the menace of disinformation as a ‘truth decay’ that eventually creates a ‘trust deficit’ where people would be at odds to believe any information as they struggle to separate facts from fiction; an effect aggravated by digitization and the emergence of social media.
Hence, the adverse consequences of digitization lead to the emergence of another interpretation of the theory of marketplace of ideas. An interpretation perhaps long overdue and is also consistent with Justice Holmes’s opinion in Abrams, which upheld the speech of anti-war activists as a free exchange of ideas based on the existing facts and not the facts themselves that deserves protection under the First Amendment.
It is pertinent to note a recent verdict of the U.S. Supreme Court in Murthy v. Missouri,rendered on 26th June, 2024, wherein Justice A.C. Barrett, speaking for the majority of 6 of the 9 judges has held the Federal Government’s request to the social media companies to prevent the dissemination of misinformation about the efficacy of masks and vaccines in COVID-19 as not censorship. This landmark ruling upholds the government’s power to prevent the spread of disinformation and misinformation in wake of public interest.
The reformed interpretation of the theory emphasises the imperative to analyse whether the citizens have a right to receive accurate and true information about the business of the government; particularly with the ‘dark side of technology’ and the role of social media in shaping political opinion in a participatory democracy, as highlighted in Facebook v. Delhi Legislative Assembly (2022).
Legal Position on Right to Accurate Information on the Government’s Affairs
- Judicial Stance
Stressing on the concept of an accountable government in a participatory democracy, the right to know as a fundamental right being implicit within Article 19(1)(a) was recognised by the Supreme Court in State of U.P. v. Raj Narain (1975),which was later specifically codified by The Right to Information Act, 2005(RTI Act).
Relying on this verdict, the Supreme Court in S.P. Gupta v. Union of India (1981),emphasised that the concept of open government mandates that the citizens have the right to know true facts about the administration of the country in order to prevent an ‘alienated citizenry’[ii] and ensure that the citizen’s participation in democracy is effective.
The verdict in Secy., Ministry of Information & Broadcasting, Govt. of India v. Cricket Assn. of Bengal (1995),also enunciates that the right under Article 19(1)(a) is to be viewed through the lenses of the listener/viewer who, in order to meaningfully exercise their right to participate in a democracy, has the right to be informed on all sides of an issue. One sided information, misinformation, disinformation or non-information creates an uninformed citizenry which makes democracy a farce.
A similar view was also expressed in D.C. Saxena (Dr) v. Hon’ble The Chief Justice of India (1996),that the right to know under Article 19(1)(a) implies the right to have correct information. Although delivered in the context of commercial speech, it is worth noting the observation in Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd. (1995),that deceptive, unfair, misleading and untruthful speech would not deserve the protection under Article 19(1)(a) and would be hit by the State’s regulation/prohibition under Article 19(2).
- Statutory Regime
The scheme of the RTI Act is to create an informed citizenry by promoting transparency and accountability in the functioning of the government. An inherent implication in the word ‘informed’ is to be not misinformed, disinformed or uninformed in the affairs of the government. [iii]
The obligation on the Government to render complete, correct and accurate information is discerned from Section 4 and Section 26 of the RTI Act. Further, the Central Public Information Officer or the State Public Information Officer can be held accountable for providing inaccurate information under Section 18 by the Information Commission, and penalised or taken disciplinary action against under Section 20.
When citizens have the right to accurate information about the government’s affairs, the corresponding duty is placed upon the State. Hence, if the information being supplied by the government itself suffers from misleading content, the object and purpose of the Act stands defeated.
Imperative of Fact-Checking to Prevent an Alienated Citizenry
Although Article 19(1)(a) protects both the presentation of facts and expression of ideas, a ‘Fact-Check Unit’, as its nomenclature goes, must only verify facts regarding the policies, rules, regulations, etc. of the government in light of the citizens’ right to be accurately informed. Satire, irony, parody, criticism, opinions, views, etc. not being a part of offensive information, cannot be unduly placed restrictions upon by the FCU under the garb of combating disinformation. Such a modus operandi of the FCU is also in consonance with the principles espoused by the UNDP.
Justice Gokhale’s opinion also accentuates upon the interpretation of the words, ‘reasonable efforts’ appearingin Rule 3(1)(b)(v), as to give an option to the intermediary to either take down the content flagged by the FCU as fake, false or misleading, or merely show a disclaimer of the content being flagged.
If the FCU checks the authenticity of the facts and presents a true accord of the business of the government backed by evidence of government records that is openly available, there is no chilling effect on free speech. Such kind of fact-checking would not be not censorship since the intermediary is not mandated to remove the content and is also consistent with the theory of ‘marketplace of ideas’ – disinformation can only be combatted with more information and the people are left to decide which information to act upon.
However, it is one thing for the government to verify facts, but it is overbroad to mandate the taking down of the content by labelling it as false by its own standards. While the former subserves democracy, the latter is an autocratic measure and nothing but censorship.
Further, a conjoint reading of Rule 7 of the IT Rules, 2021, and Section 79(3)(b) of the Information Technology Act, 2000, reveals that it is only when the intermediary receives actual knowledge, or is notified by the appropriate Government or its agency of the flagging of a content as fake, false or misleading by the FCU, it is required to take ‘reasonable efforts’. On the failure of the same, the safe harbour protection is proposed to be lifted, which is in consonance with the verdict in Shreya Singhal v. Union of India (2015).
The right to know in a participatory democracy will be rendered nugatory if disinformation and misinformation floats in the ‘marketplace’ while the government stands idle; thereby, allowing the citizens to be misled that in turn renders democracy weak and insecure since a citizen’s participation in the democracy will be meaningful and effective only if it is based on accurate information. Discussion based on deliberately distorted facts is anathema to democracy.
Therefore, the prevalence of disinformation and misinformation regarding the government’s affairs can be said to attract the grounds for placing reasonable restrictions to Article 19(1)(a) under Article 19(2). To prevent the spread of the same, methods such as fact-checking and media literacy initiatives would enhance the citizen’s ability to distinguish facts from fiction and engage in free and open discussions that involves accord, dissent and criticism based on true and existing facts.
Conclusion
The rise of an infodemic has its own drawbacks; from the news on the presence of nano-GPS chip in the Rs. 2000 note to a deepfake video of the Finance Minister’s manipulated speech in the Union Budget, 2024, disinformation has serious socio-economic and political consequences in addition to distorting public perception and undermining their trust in credible sources.
In these contexts, fact-checking by government helps weed out factual disinformation and misinformation unless the FCU, instead of publishing accurate and non-biased information, conceals material facts and pushes information favourable to party propaganda. This underscores an accountable FCU, free from political influence and biases which can expose the government to increased public scrutiny and enable the citizens to criticise and debate on true facts. Additionally, an option to the intermediary to either take down the flagged content or retain it with a disclaimer or challenge the FCU’s flag before a competent court could nudge the establishment of the FCU under Rule 3(1)(b)(v) of the IT Rules, 2021, towards constitutionality.
Endnotes:
[i] Ari E. Waldman, ‘The Marketplace of Fake News’ [2018] UPJCL 845
[ii] Shriram Maheshwari, Open Government in India (MacMillan 1981) 95
[iii] The Right to Information Act, 2005, Statement of Object & Reasons, No. 22, Acts of Parliament, 2005 (India)
The Authors are 4th-year students from School of Law, CHRIST (Deemed to be University), Bengaluru.
Image Credit: Rappler.com
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