This article is written by Yogesh V Nayyar, Advocate in the Supreme Court of India. Member, International Council of Jurists, London.
Table of Contents
Introduction
With time, as is settled principle and is evident; as law of nature changes, so does there is requirement of reforms and amendments with introduction of new laws to control infringement of rights, privacy or individuals.
In the current changing scenario, if we try to look back almost seven decades ago, time was very different, there being not much development in technology and advancement, growth and development. Publications normally used to be in the form of print media, news channels especially after introduction of television and on radios.
With time, developments kept going on and these developments, especially on the technological front, made mass development with the introduction of computers, internet, social media, networking websites which crept in and made way in lives of people.
The fact cannot be sidelined and ignored that with development, lives, life pattern, lifestyle of people has changed a lot, thus people becoming more tech savvy and it cannot be ignored that lives of people has been now more nucleus and concentrated and attached to few things specially media and communication systems, which rather could be said are playing important roles in the life of people.
In a generalized way it can always be said normally nowadays that any information is news. Not necessary that it is specifically related to any specific field; be it politics, medical science, engineering, law, publications, business or otherwise.
It’s a matter of great concern that with time, as said the development and especially the technological development and introduction of gadgets have crept in the life of people thus every normal person has an access to anything irrespective whether it’s a good quality subject or otherwise.
Time and again, as it was said earlier in the old era it depends on the quality of life you live, the trend changed remarkably and people now prefer an easy going life.
It’s a known fact that “where there’s a heap of gold, there’s always a thief”. Similarly, where there’s development, there’s a hole and likewise, there are opportunists waiting for opportunity to make out profit; no matter whether someone suffers or not.
These opportunists cannot always be said to be good traders or businessmen but more likely are offenders playing with lives of people with malice. To attract people to the beehive they always portray pictures which entice masses to fall prey to things. Such items can be in the form of news, promotion campaigns and are not limited or restrictive to one; thus affecting the lives of many.
The phrase “Grass is always green on the other side of the mountain” comes true, when people fall prey to such fake news, promotion campaigns, etc.
Trends change; so does the law of society. As time is getting modern; people are finding ways to commit offences in an elite way using technology. Thus, the need of the Bill introduced by Government of India i.e. The Fake News (Prohibition) Bill, 2019.
Objective of the bill
The advent of modern technology has caused a shift from traditional news reporting in print, broadcast media and the internet, especially on social media platforms. We hear and read the phrase “fake news” every day. Fake news creates impressions and beliefs based on false premises leading to division, misunderstanding and further exacerbating otherwise tenuous relations.
The distribution of false information through fake news has become easier in the age of the internet, where anyone can post a report or a statement to resemble a news story and claim it as true and factual. Fake news or information cause or intend to cause panic, division, chaos, violence, hate or must exhibit or intend to exhibit propaganda to blacken or discredit one’s reputation. A large number of incidents of mob lynching have reported from various part of the country due to the spread of fake news in the social media like whatsapp, Facebook, Twitter, etc. Studies have also found evidence of political parties spreading propaganda on social networks during elections in the country.
As the object of the Bill speaks; fake news in India refers to misinformation or disinformation in the country which is spread through word of mouth and traditional media and more recently through digital forms of communication such as edited videos, memes, unverified advertisements and social media propagated rumors. Fake news spread through social media in the country has become a serious problem, with the potential of it resulting in mob violence, as was the case where at least 20 people were killed in 2018 as a result of misinformation circulated on social media.
Rasmus Kleis Nielsen, director at Reuters Institute for the Study of Journalism, thinks that “the problems of disinformation in a society like India might be more sophisticated and more challenging than they are in the West”. The damage caused due to fake news on social media has increased due to the growth of the internet penetration in India, which has risen from 137 million internet users in 2012 to over 600 million in 2019. India is the largest market for WhatsApp, with over 230 million users, and as a result one of the main platforms on which fake news is spread. One of the main problems is of receivers believing anything sent to them over social media due to lack of awareness. Various initiatives and practices have been started and adopted to curb the spread and impact of fake news. Fake news is also spread through Facebook and Twitter.
According to a report by The Guardian, the Indian media research agency CMS stated that the cause of spread of fake news was that India “lacked (a) media policy for verification”. Additionally, law enforcement officers have arrested reporters and journalists for “creating fictitious articles”, especially when the articles were controversial.
To control and curb the circulation of fake news in any form whether it is by way of circulation, sharing, misquotation of statement, editing of audio and video clips, fabricating content, undermining, sowing seeds of enmity, sedition, hatred, disseminate, edit, abet, etc. ; in the House of Lok Sabha on 08th February, 2019, debate took place on the subject and Shri. Tej Pratap Singh from Mainpuri proposed before the Hon’ble ChairPerson to introduce the Bill.
As per the debate “That leave be granted to introduce a Bill to prohibit the creation and distribution of fake news in the media and for matters connected therewith.” The motion was adopted.
“श्री तेज प्रतापसिंह यादव: महोदय, मैं विधेयक को पुर:स्थापित करता हूं ।” (As per Lok Sabha Debates Introduction of The Fake News (Prohibition) Bill, 2019. on 8 February, 2019 Sixteenth Lok Sabha > Title: Introduction of the Fake News (Prohibition) Bill, 2019.)
Provisions under the ‘The Fake News (Prohibition) Bill, 2019
The bill presented before Lok-Sabha, comprise of Sections, i.e. Section 1 to Section 10. Vide Section 1 of the Bill, the Bill once assented to by Hon’ble President of India would be termed as The Fake News (Prohibition) Act, 2019 and is made applicable to whole of India and shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
Thus, as yet since the date of it having been proposed before Lok-Sabha; there’s no news of the Bill to take form of an Act.
Under Section 2 which is a “definition” clause, the definitions are set out which would regulate and be part and parcel of the provisions of the Act, as of now The Bill.
Section 3 of the Bill speaks of “Prohibited Acts” and is reproduced as under:
The following acts are hereby prohibited:-
(a) create through broadcast, social media platforms and/or print fake news by any mass media outlet whether or not such mass media outlet knows of its falsity and regardless of intent;
(b) aid or abet in the creation, distribution or circulation of fake news by any mass media outlet whether or not such mass media outlet knows of its falsity and regardless of intent;
(c) deliberately and maliciously create and disseminate fake news through broadcast, social media platforms and/or print by any mass media outlet or social media user;
(d) deliberately and maliciously aid or abetting in the creation, distribution or circulation of fake news through broadcast, social media platforms and/or print by any mass media outlet or social media user;
(e) defer or desist from any mass media outlet or social media user,-
(i) retracting any fake news; and
(ii) broadcasting or publishing an erratum addressing the fake news.
The provision of Sec 3 if gone through read with section 5 of the proposed bill. Section 3 of the proposed bill is absolutely contrary to the provision of section 5 of the proposed bill and thus demolishes the scope and object of the proposed bill to come into effect in the form of an Act.
Section 4 of “The Bill” speaks about PROHIBITION ON MALICIOUS CREATION AND DISTRIBUTION OF FAKE NEWS.
No person shall maliciously offer, publish, distribute, circulate and spread false news or information or cause the publication, distribution, circulation or spreading of the same in print, broadcast or online media housing such false news or information cause or intend to cause panic, division, chaos, violence, hate or which exhibit or intend to exhibit a propaganda to blacken or discredit one’s reputation and the person knowingly commits such act with full knowledge that such news or information is false, or with reasonable grounds to believe that the same is false.
Reading the section which is part of the act enunciates all the acts prohibited to be done or distributed. The opening of the section is with the word “No person” which means and includes every person. However, the section is incomplete as it says “with full knowledge that such news or information is false, or with reasonable grounds to believe that the same is false”. It means every person who is having knowledge of the news or any material to be false need not distribute or circulate it and thus leaves a loophole and does not include the word “unknowingly” and thus lacks and does not cover persons “who are not having knowledge of.”
The drawback of the section is it incorporates the word “maliciously”, thus renders the provision of no use as it opens a gateway for the offenders to plead innocent unless proven guilty.
The biggest flaw which is apparent that the section does not speak of punishment to be imposed on an individual person, if the offence is committed by an individual in particular.
SECTION 5 of The Bill speaks of FAILURE TO REMOVE FALSE NEWS.
Section 5 elucidates “If any mass media enterprise or social media platform fails, neglects or refuses to remove false news or information within a reasonable period after having knowledge, or having reasonable grounds to believe, of its falsity shall be deemed to be guilty of an offence punishable under this Act.”
Though Section 5 speaks of failure to remove false news. However, its applicability is only to social media platforms and not applicable to every single individual of society. Nonetheless, the provision is contrary to definition stated under section 2 (i) “retract” means the withdrawal and deletion of fake news broadcast or published when applicable.
The section speaks of the words “within reasonable time” which is ambiguous and not clear as to what time the fake news needs to be removed from the social media platform after having knowledge. Thus, the provision in absence of a specific time frame becomes redundant.
The provision of section 5 nowhere emphasizes the regulatory body who would ask for removal of the fake news, which makes the bill redundant.
Section 6 of The Bill speaks of PENALTIES.
(1) Any mass media outlet found guilty of creating, disseminating, aiding, abetting or refuses to retract fake news shall be punished,—
(a) with a fine of rupees five lakh for first offence;
(b) rupees ten lakh and its operation suspended for one week for second offence;
and
(c) twenty lakh and its operation suspended for a month for any subsequent violation.
(2) Any social media user found guilty of creating, disseminating, aiding, abetting or refusing to retract fake news shall be punished with a fine of rupees one lakh for the first offence, rupees two lakh for the second offence and rupees five lakh for any subsequent violation.
Thus, bare reading of the section elaborates its applicability to mass media/social media. It is noteworthy that the provision is absolutely discriminatory within itself as for mass media, the quantum of fine is kept quite exorbitant and on the contrary for the social media platform it is kept meager as compared to each other. Thus, the act shows a biased approach meant and drafted benefiting social media platforms.
SECTION 7 of The Bill speaks of OFFENCES BY COMPANIES.
- Where a person committing a contravention of any of the provisions of this Act or of any rule, direction or order made thereunder is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of business of the company as well as the company, shall be guilty of the contravention and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this subsection shall render any such person liable to punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention.
- Notwithstanding anything contained in sub-section (1), where a contravention of any of the provisions of this Act or of any rule, direction or order made thereunder has been committed by a company and it is proved that the contravention has taken place with the consent or connivance, of or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other Officer shall also be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly.
Explanation.—for the purpose of this section:—
- “company” means anybody corporate and include a firm or other association of individuals; and
- “director” in relation to a firm, means a partner in the firm.
Analytically, the section clearly states that the fault if any would be of the Company and thus involve the person responsible at the time when the offence takes place subject to if the same is done with knowledge.
The part of Section 7 (1) is in absolute contravention to section 4 of the Bill and is supported by proviso clause, which gives right to an offender to prove that the contravention took place without his knowledge and exercised due diligence.
That apart, Section 7 (2) starts with a non-obstante clause and continue to say that “where a contravention of any of the provisions of this Act or of any rule, direction or order made thereunder has been committed by a company and it is proved that the contravention has taken place with the consent or connivance, of or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other Officer shall also be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly”.
As stated “supra” the scheme of the Bill as per Section 6 and 7 speaks of Penalties and Offences by Companies.
Reading Section 6 and 7 together, it can be construed that, nowhere under the scheme of Section 6 words “director”, “manager”, “secretary” or “other Officer” are defined under Section 2 of The Bill.
Section 7 (2) of The Bill speaks of words “director”, “manager”, “secretary” or “other Officer”, to be held deemed guilty. However, the penalty on “director”, “manager”, “secretary” or “other Officer” to be fastened as per Law is nowhere prescribed under the Bill and thus in absence of words “director”, “manager”, “secretary” or “other Officer” in Sec 6 of The Bill leaves vacuum in the provision to punish “director”, “manager”, “secretary” or “other Officer”.
It is noteworthy that, words “director”, “manager”, “secretary” or “other Officer” though mentioned and specified under section 7 (2) of The Bill, but nowhere it is stated that the “director”, “manager”, “secretary” or “other Officer” need to be in-charge thus bringing them within the ambit of “consent or connivance, of or is attributable to any neglect”.
As postulated under section 7 of The Bill that, for any contravention committed by a company, not only the company would be liable for punishment but as well “director”, “manager”, “secretary” or “other Officer” shall be deemed to be guilty. Herein word deemed is of great importance and value as per Criminal Law.
Under the proposed bill, the word “deemed to be guilty” is addressed. However the provision of section 7 (2) overrides provision of section 7 (1) as section 7 (2) starts with non-obstante clause. Contrary to what is stated in section 7 (2), section 7 (1) speaks of liability of the person who is in charge.
SECTION 8 By virtue of Section 8 of The Bill, Powers have been vested in the Government to remove difficulties. However, the proviso clause being specific and holds good, no orders to remove difficulties can be passed after 3 years from date of commencement of the Act.
SECTION 9 of The Bill gives overriding effect and thus the Act after its commencement and the provisions therein would have an overriding effect on other acts or law.
SECTION 10 vests Powers to make rules in the Central Government.
Conclusion
No doubt, the problem of fakeism and fake news is spreading like weed all over and there is a necessity to have laws to control and curb circulation of fake news via social media vis-à-vis other platforms.
Needless to mention here that, the Bill though introduced and proposed by the Central Government for curtailing the spreading and prohibition of fake news; is absolutely silent in regard to the jurisdiction of the Court/ forum to decide the case/offence as stipulated under section 5 and 7 of the proposed Bill.
It is noteworthy that the Bill is silent as well in respect of the Regulating body/authority which would decide the authenticity or a news to be fake as per section 2 of the proposed bill. The bill nowhere speaks of any regulating body/authority named to control the spreading/circulation of fake news nor does it empower any person or institution to take legal action against the company as per the scope and scheme of the bill. The bill does not propose in the event if any fake news is in respect of a person in particular; to whom such person should approach for lodging complaint is not specified in the proposed bill.
The offence was stipulated under the scheme of the proposed bill already presented, before Lok-Sabha. However, the entire body of the proposed bill to come into effect in the form of an Act pursuant to the assent of Hon’ble President of India, does not disclose whether the offence would be cognizable or non-cognizable offence and would be bailable or non-bailable.
Section 9 of the proposed Bill speaks of overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force on the subject and save aforesaid the provisions of the Act shall be in addition to and not in derogation of any other law for the time being in force. The proposed bill; as speaks of commission of an offence, punishment; the proposed bill does not disclose or classify the applicability of procedural aspect of Code of Criminal Procedure for trying the offences.
The Bill crafted and drafted, though focused on the issue to prohibit spreading, circulation of fake news and thus “The Fake News (Prohibition) Bill, 2019 came into existence and placed before Lok-Sabha. However, the Bill is incomplete and does not hold good to come in the form of an Act unless made stringent not requiring notifications and amendments from time to time.
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