This article is written by Preetham Kumar pursuing MBA with a Specialisation in Data Protection and Privacy Management from the Swiss School of Management. This article has been edited by Zigishu(Associate, Lawsikho).
This article has been published by Sneha Mahawar.
Table of Contents
Information, as an intangible business investment
‘Information’ can do what an exponential factor can. Just as an exponent exemplifies a number, information can champion that too, except that information is not about numbers, but about ‘interpretation of data.’ In many ways, information can set out to create a chain reaction potentially impacting many social spheres in an instant. When coupled with a concept, it becomes influential in the social spectrum. Economy and Democracy – the two pillars of the modern world, which are progressing because of advancements in technology, globalization, and other political sciences, are also heavily influenced by the type of information presented on different platforms. Information, therefore, inextricably overlaps with areas of business, finance, and society at large. One cannot exist without the other.
A short analysis on why credulous data is hard to mine
When data clusters are mined, people are essentially looking to output information patterns that eventually give out insights. Since these insights are backed by data, they are used in making better and more efficient decisions, establishing statistics, and most importantly, becoming ‘the latest known thing’ – a trend. This happens in all known spheres – Social, Economic, and Political. . Since ‘Information’ is recognized as an indispensable ‘power’ in different forms, people often try to make it up.
The right kind of information is true, is factual, and hard to find. It is also expensive. For instance, technological research and consulting firms such as Gartner and Forrester invest thousands of dollars only to mine actionable insights from data. They are also keen on investing millions of dollars in data-driven SaaS platforms designed primarily that cater to data-driven markets and business intelligence. The information that they make available is viewed as a benchmark in many other industries, especially in businesses that set aside at least 15% of their budget into marketing and business fluidity. In another scenario, News and Journalism networks also rely heavily on authentic data to be aired. More than 50% of their budget is spent on hiring talent that can mine authentic news – information which is true, based on facts/merits, likely to happen, live streaming, varied sources that cover all aspects, and so on. The same goes with Publishers and Inventory owners. Before an article even gets published, there are interviews to cover all sides of the story (because it adds to the authenticity), there is data and statistics backing the survey numbers, and other information that gets aired or published. This meticulous work and investment are what give credibility to the information published globally. Given all this, it is clear that the ‘information market’ requires a certain skill set, investment, intelligence, which makes it hard for someone operating on a low budget to get hold of quality data. A lot of them, therefore, choose alternatives to ‘make-up’ data and information which obviously would not be reliable and credulous.
Defining dis-information
The information represents a particular arrangement or sequence of things. These become very subjective in many ways although it is backed by facts provided or learned about something or someone. ‘Subjective’ leaves room for ‘incomplete information’ fracturing the ‘uniqueness’ that any ‘information’ is originally set out to be. It loses its viewability like a tumbling pack of cards. This is widely known as ‘information disorder’ in the field.
This disorder can manifest in different forms. Sometimes they are done with an intent to cause harm, and others, are simply done to gain attention but no harm. Sometimes, information that is restricted is made public without authorization, or sometimes dummy information is sent out to create noise or divergence. Whatever the disorder, defining it clearly (without leaving room for doubts) helps estimate the gravitas and predicament of the situation.
- Dis-information is when false information is knowingly shared to cause harm.
- Mis-information is when false information is shared, but no harm is meant.
- Mal-information is when genuine information is shared to cause harm, often by moving information designed to stay private into the public sphere’
As observed, it’s pretty clear that the predicament of information disorder depends on the analysis and employment of the following four elements.
- The veracity or the misleading nature of the information
- Was it disseminated with a specific intention?
- Was the intent to target a specific set of audience – social harm?
- Economic gain
Disinformation in the legal scope – a gambit to ‘prevent’ than to ‘sustain’
Other than the traditional way of finding data (as analyzed in the above section), we often witness influencers (politicians, CXOs, Directors, etc.) make candid statements that often attract all kinds of criticism. The criticism usually comes when the statement is anticipated in a tense or a decisive moment within the ambit of related events – election results, national financial budget, stock market trends, social image, outcomes of landmark events and cases, news channel debates, and so on. An influencer is often viewed as someone who promotes an idea or a belief (an opinion that is biased) to a larger audience. Every statement is in one way or the other information reaching out to hundreds, if not thousands, of audiences. Sometimes they change mass perceptions and can pelt something the wrong way resulting in riots or foul play. Therefore, an entity is not at liberty, ethically, to spread false or incomplete information in any scenario. They attract unwanted attention, and obviously have consequences either through public apologies, fines, negative imagery and in the worst case, being charged with criminal intent.
But is false or incomplete information close enough to be legally charged? Given that information was not forced, not against violation of any basic principles guaranteed under the law, and most importantly subjective. The law further explores concepts on proportionality and commonality to assess the extent of damage such disinformation can potentially cause in a scenario. On one hand, the judicial system reviews the intent of the entity that is accused of causing harm or spreading false news, or misrepresenting facts. On the other hand, it inspects if the impact or gravitas was because of a negligent decision taken without due diligence.
Consider a scenario where an investor associated with a well-known brokerage firm makes a statement (through any media source) that a certain market is likely to take a negative hit because of something that’s happening on the borders of two states. He further recommends a strategy of buying and selling stocks. This piece of information had one lakh unique views and almost half of them caved in to this and made their trade. Days pass, and the market reacts differently than what the associate predicted. And as a result, almost fifty thousand people suffer losses on their trade. They blame the associate for making a statement that caused them a loss of this stature. They further accuse him of spreading disinformation and tarnishing the brand image of the well-known firm. The question: will this accusation hold in the court of law when reviewed? The answer is again subjective and will depend on various factors that will primarily assess to find the 4 elements discussed above. If it’s found that there was an intent, and was done to cause harm, then the crime will attract fines and penalties. But otherwise, it will simply remain a case of market risk and negligent trade.
Most information that is not true is put out there to get momentary fame. This is perceived as a crime within the scope of information disorder. Although many scholars argue that this type of incorrect or made-up information is not recognized as ‘illegal,’ it is surely misleading and therefore ‘can be’ harmful – i.e., “need-not-be” but “can-be.”
So, when we revisit the definition of dis-information structured by various global laws, two elements amongst others are primary identifiers –
a) knowingly shared,
b) causing harm. Again, critically analyzing the two identifiers will only make way for more ambiguity.
Perils of inaccuracy under legal review
Digital laws under the Indian Information Technology Act 2000, are the only primary laws in India dealing with cybercrime and electronic commerce. Sadly, they are old, outdated, rigid, and need major amends. What we need today are digital laws that are flexible and open to broader interpretation.
If the law recognizes ‘disinformation’ as false information knowingly shared to cause harm, some may argue around the ambiguity that exists around the term ‘false information.’ Is the legal rule interpreting ‘false by very nature’ or ‘false on verification?’ If the legal interpretation is based on old and outdated laws and is rigid in terms of interpretation, it will simply deem the judicial branch incapable of conducting justice.
No thorough definition and policy around the concept of dis-information will only leave the topic criticized for being too broad and vague to function under the law. Whatever the policy formulation in the future will be, it should stem from perspectives of legal certainty, effectiveness, and freedom of expression.
Our economy is growing by the day, and tons of information is being exchanged internationally at high volumes. The country is no longer viable to lay back in tranquility and harmony envisioning a safe cyber-haven. Information and disinformation are not just domestic issues but have taken on an international context. . Just like how disinformation can cause conundrum nationally, its effects can be felt across borders as well. Therefore, arresting disinformation should start by introducing the concepts of privacy and establishing privacy laws. And since everything is going digital these days, there have to be governing frameworks that will introduce apt digital and privacy laws, with policymakers being experts at everything data and information.
India, being the largest democracy should participate and be a part of the global digital economy. Therefore, it is very important that the Indian Judiciary gets the next bit of legislation in digital reforms very right in terms of its ability to be flexible and evolvable. That said, a country like India, with the largest connected market in the world should not wait until the laws are officially formulated by some other global powerhouse. It’s best to start taking the lead, or in the interim adopt a few digital law structures practiced globally, such as the ones in the EU (European Union, European Commission, and High-level Expert Group).
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