Lakshya Dokania & Srishti Gaur
Introduction
In his articulation of his defences for free speech, John Stuart Mill provides a compelling three-pronged argument as to why every opinion, regardless of its degree of falsity, should be allowed to flow freely. There is no denying that a diversity of opinion helps us make a rationale decision and the same stands true while exercising choice in an election. However, misinformation has immense social costs during the times of election, when falsehood corrodes voter’s knowledge of basic facts and pollutes public discourse by stitching up false narratives, thus, harming the integrity of the electoral process.[i]
The Indian Phenomena: 2019 and 2024 Election
Misinformation has been a common phenomenon in Indian elections, plaguing decades of electoral practice. In a high-profile case from 2014, the ECI found former Maharashtra CM Ashok Chavan guilty of misrepresenting his election expenditure as he failed to disclose the exact amount paid by him to newspapers for publishing election advertisements. The rapid growth in technology has revolutionised this phenomenon at a warp speed, so much so, that the 2019 polls were dubbed the “social media elections.” Leading parties in the 2019 general election integrated misinformation into their campaigns, using bots to distribute manipulated images, coordinated content, and counterfeit videos on Facebook, along with forwarded WhatsApp messages, underscoring the damaging role of social media in spreading misinformation. Elaborating on this negative impact of social media, the Supreme Court (hereinafter “SC”) in Facebook v. Delhi Legislative Assemblynoted that “while social media… is enhancing equal and open dialogue between citizens and policymakers it has become a tool…where extremist views are peddled into mainstream media, thereby spreading misinformation.”
Back in 2019, the dissemination of misinformation by means of technology was largely restricted to circulation of false content through social media. However, the rapid advancement of technology has fuelled the rise of deepfake videos, making them more affordable and easier to produce. Political campaigns made extensive use of AI ahead of the 2024 elections with reports suggesting that political deepfakes were views by millions of voters. A survey by McAfee revealed that at least 64% of respondents found it increasingly difficult to detect scams due to the rise of AI. Moreover, the World Economic Forum’s 2024 Global Risk Report reported that the risk of AI-fuelled disinformation and misinformation in India runs the highest.
Deepfake technology demonstrated its power when Rahul Gandhi’s trans-India march was accompanied with fake news reports claiming that the National Flag of arch-rival Pakistan was raised during his march. In another instance, AI-generated videos of late politician M Karunanidhi were found being used to support his son, MK Stalin, and boost his political image. The implications of such videos are far-reaching as it risks eroding trust in political messaging and exacerbating the spread of disinformation, and leading to voter manipulation.
Misinformation and Social Media: Undermining Democratic Values
Internet was celebrated as a forum for democratisation of voices, providing an equal forum for everyone to shape politics and dismantling the monopolisation of news by traditional media houses. An increased penetration of the internet has led to an exponential increase in the sources of information and instead of furthering democratic values, it has become a tool distorting the relation between information and democracy. An increased exposure to fake news, as noted by Matthew Loveless, has transformed citizens from passive consumers to active selectors wherein they restrict themselves to the information they are aware of and emotionally associate with and remain confided to their “echo chambers” and “filter bubble”- a process known as silo-ification of information.[ii] These silos constrain the active transmission of information from one bubble to the other and violates the integrity of a democratized system by depriving the voices from having an equal value. These “echo chambers” are the result of “motivated reasoning”, wherein people believe as per their emotions and this leads to a false social consensus.
The politically charged avenue uses algorithms and techniques to manipulate individuals, which is a process called “computational propaganda”, leading to social and ideological polarization of individuals. In such a system, the voters get swayed by emotions rather than logical reasons, thus, vitiating the decision-making process.
Constitutional Safeguards
It is true that the Constitution of India does not deal directly with fake news, however, due to the impact posed on the democratic process, there are different facets of constitutional law that deals with fake news and its propagation.
1. Right to Free Speech and Expression: Article 19(1)(a) of the Constitution of India guarantees freedom of speech, however, the right is not absolute and is subject to reasonable restrictions as mentioned under Article 19(2). In State of Uttar Pradesh v Raj Narain, the SC noted that Article 19(1)(a) provides every citizen with the right to receive and propagate information to the benefit of public interest. While the spread of misinformation is not explicitly constitutionally prohibited, the effect that it poses on the public warrants limitation. In Babu Lal Parate v State of Maharashtra, the apex court, while adjudging the constitutionality of Section 144 of CrPC, concluded that freedom of speech can be limited for the “maintenance of public order and tranquillity”.
2. Right to Free and Fair Elections: The Election Commission (hereinafter “EC”) is the fourth important institutional arrangement of the Indian democracy. The EC has considerable autonomy as it derives its power from Article 324 of the Constitution. Its functioning, over the years, has demonstrated its prowess and earned the title “bulwark for free and fair elections in India”.[iii] However, the digital revolution is testing the prowess of the EC to ensure that the democratic process does not denigrate amidst the rapid flow of fake news. In PUCL v Union of India (2003), the apex court affirmed the importance of information for the voting process, however, warned about the threats of misinformation on the electoral process which produces “an uninformed citizen” and eventually leads to mobocracy.
3. Right to Information: The right to information is a crucial right, flowing from Article 19(1)(a), ensuring that the public is vigilant and aware of the choices available to them, as noted in Union of India v Association for Democratic Reforms. On the same lines, Section 33-A of The Representation of the People Act, 1951 (hereinafter “RPA”) effectuates the said right by obligating the candidate to furnish their information to ensure that voters make a reasoned choice. Ensuring that legitimate information is reaching voters is a duty of the EC. However, the tornado of fake news has weakened the foundations of the fundamental right and a lack of regulatory mechanisms to oversee the spread has affected the democratic process.
Existing Measures to Counter the Spread of Misinformation
India does not have statutory provisions or regulatory frameworks to counter the spread of fake news on social media, especially during elections, however, there are certain measures taken by the EC and few existing provisions that can be used to address the growing menace.
As per Rule 3(2) of the IT Rules, 2021, social media intermediaries need to take down content within 24 hours of receiving a complaint. Further, the CEC informed that State authorities are empowered to instruct removal of fake social media posts under Section 69 and Section 79(3) of the Information Technology Act, 2000 (hereinafter “IT Act”). However, it is not certain that the foregoing provisions of the IT Act will lead to expeditious removal of misinformation as the SC in Shreya Singhal v. UOI and Google India Private Limited v. M/s Visakha Industries held that an internet service operator shall not be required to take down third party information on the basis of mere knowledge or objection to it, but after there has been an impartial adjudication by a court. Additionally, in light of growing concerns about deepfakes and its potential implications on the Lok Sabha Elections, the Indian Government considered bringing changes to IT rules. The government had proposed for WhatsApp to disclose the identity of users who first share such manipulated content, however, this raises significant privacy concerns as WhatsApp’s end-to-end encryption protects sender’s information from being revealed.
Acknowledging the adverse impact of AI technology on elections, in 2019, the ECI entered into a formal agreement with the Internet and Mobile Association of India to develop a “voluntary code of ethics”. The agreement aimed to place checks on violative content wherein the social media companies agreed to act on violations within three hours of receiving complaints from the ECI with reports. While the model of a self-regulatory code appears to be a good first measure, the self-regulatory model code is not sufficient to realise the stated regulatory objectives of containing harmful content as global trends have suggested that the self-regulatory model bears the risk of fragmentation and lack of legitimacy.
In May 2024, the ECI released guidelines that prohibited political parties from using AI-based technology to manipulate information or spread false content that may affect the electoral process. The guidelines also mentioned that its violation would attract penalisation as per relevant provisions of the IT Act, RPA, and the Model Code of Conduct. However, these guidelines were vague and seemed more of an afterthought as they were implemented after the conclusion of three stages of polling.
The ECI also introduced educational initiatives such as Myth vs. Reality to curb the proliferation of misinformation on social media. This initiative allows the voters to corroborate and verify any dubious information they receive through any channel with the information provided in the register. Additionally, the ECI had also developed the cVigil application to allow voters to report violations of the Model Code of Conduct. While these efforts are appreciable, it is unclear how effective these measures were as a report revealed that the cVigil app prohibited users from uploading pre-recorded photos/videos, thereby limiting voters from flagging violative content on social media.
A Case for the Need of Definition of Fake News
Adopting from the experiences of other countries, the development of a proper definition is also the need of hour to ensure that the definition, while acclimatizing to the Indian needs, does not stifle free speech during the electoral process as happened with Malaysia’s Anti-Fake News Act, 2018 which defined fake news as “news, information, data, and reports, which is or are wholly or partly false or in any other form capable of suggesting words or idea.” The Act was scrapped in 2019 as it became a tool to curb dissent and veered from its intended aim to curb fake news during elections.
Similarly, recognizing the threat that fake news poses on democracy, France introduced a law allowing authorities to remove and block misinformation on social media three months prior to polling day. France introduced a three-prong definition of fake news to prevent electronic misinformation during election- evidence of the news being fake, deliberate attempt to disseminate the news on a substantial scale and the news directly resulting in disturbance of peace
Therefore, a comprehensive and restrictive definition of “fake news” is required to ensure that the news has a proximate link with the effects caused and the connection cannot be speculative, as laid in Shreya Singhal v UOI, to ensure that legitimate news is not restrained from reaching the public discourse and affecting the electoral process.
Electoral Lessons from Comparative Jurisdiction
In the marketplace of free ideas, social media, instead of promoting equal participation, has led to polarisation, especially with the advent of AI, making it imperative for the EC to implement measures by learning from the experiences of other democracies.
Indonesia, learning from the widespread disinformation in its 2019 electoral cycle, fastened itself for its upcoming 2024 election. Indonesia’s General Election Supervisory Agency (Bawaslu) instituted technical regulations and a participatory monitoring system under the Indonesia Action Plan 2022-2024 to wade against the tides of misinformation. Additionally, the oversight mechanisms, created to tackle the issue, have taken not only a top-down approach but also a bottoms-up approach wherein public has been engaged in monitoring the spread of misinformation during elections- an example being the creation of Mafindo, one of the country’s largest grassroot fact-checking network.
Identifying the adverse effects of fake news on democratic debate, the Superior Electoral Court of Brazil (TSE) implemented measures, including participation in a working group with the Federal Police and the Attorney General’s Office to combat fake news during the 2018 general elections with “the least possible interference in the democratic debate.”
Children often fall victims of propagators of misinformation, and research showed that educating young students reduces their susceptibility to fake news. Finland in 2014 launched an anti-fake news initiative, promoting students to separate fact from fiction thereby, making schools the epicentre in the battle against fake news. The initiative was later adopted by several other countries. Working on the same lines, the EC can introduce pedagogical intervention campaigns to foster motivation in youngsters to report fake news and evaluate credibility of the source.
Way Forward
There is no denial that India’s war against misinformation becomes harder particularly due to low digital literacy at times when internet penetration has increased exponentially. There is a need for adoption of exigent methods to preserve the sanctity of elections:
1. Drawing from the Dinesh Goswami Committee Report, 1990, it is imperative to constitute a Standing Committee of Parliament to evaluate the evolving aspects of the electoral process and adopt dynamic measures to resolve the identified issues. Adoption of such provisions become crucial at times when the rise of technologies, such as AI has worsened the integrity of elections.
2. The Standing Committee on Communications and Information Technology in its 27th report recommended that AI should be used to detect fake news and existing expertise of non-governmental agencies should be employed to fight off fake news and lastly, lessons should be drawn from other jurisdictions that tackled fake news during elections. It is true that AI is a double-edged sword, however, the EC should use AI strategically to identify disinformation patterns and flag dubious content in real-time. Additionally, the EC should collaborate with expert NGOs to expand its reach and effectiveness.
3. A top-down response to fake news has been inefficient to an extent as it mostly requires an arbiter to determine what is “fake” and “legitimate” which skews power distribution.[iv] The problem to this issue lies in individual immunisation to fake news which is only possible through digital literacy courses, raising public awareness and building grassroot groups working against the proliferation of fake news. Such groups can be deployed to overcome the linguistic barrier of AI and problematic sources of different languages can be filtered.
According to Justice Khanna, democracy is a basic structure of the Constitution and free and fair elections form a pivotal part of democracy. Addressing misinformation in elections is crucial for safeguarding democracy in India. Despite the attempts made, comprehensive legal reforms are required to tackle the threats posed by fake news using artificial intelligence and social networks. Thus, it is required that the governance addresses the surging concerns to protect the electoral integrity while maintaining a fine balance with the freedom of speech.
Endnotes:
[i] Ari Ezra Waldman, ‘The Marketplace of Fake News’ (2018) 20 University of Pennsylvania Journal of Constitutional Law 101.
[ii] Matthew Loveless, Information and Democracy- Fake news as an emotional weapon (1st edn, Routledge 2020) 66.
[iii] Manjari Katju, ‘Election Commission and Functioning of Democracy’ (2006) 41 EPW 17.
[iv] Loveless (n 2).
The Authors are second-year law students at National Law University Delhi.
This article is the Winner of the 2nd NLUO-CLS Essay Writing Competition 2024.
Image Credit: Madhyamam.com
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