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This article has been written by Priyanka Jain pursuing a Crack California Bar Examination – Test Prep Course from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Introduction

In the era of awareness and literacy, there is a lot of resource sharing by way of books, articles, blogs, videos, and artificial intelligence (AI) and misuse of the information to gain money or recognition. Last few decades have witnessed a boom in Information Science and Technology. Information is a variable that is dependent on location, time, and situation. The Internet has seen a paradigm shift in its use and resource sharing. The advent of laptops, tablets, and smartphones has made the information a pool of knowledge that can be easily accessed by anyone through these devices anytime, anywhere, irrespective of their age, their need or their desire that is also in their hands.  The world now possesses the treasure of human knowledge by way of various electronic devices and disseminates this human knowledge or information to anyone much faster than the blink of an eye.

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Fake news is false news. It is a decay of truth. Where the disseminator intentionally renders information based on falsehoods for public reaction. Fake news is entirely false and created to deceive the intended audience into taking it as real news. It can be created by human creativity or the use of artificial intelligence tools like generative AI and deep fakes. Any piece of knowledge is created through the tools used to deceive the public. The most unfortunate examples are suicide cases where people whose faces were shown in the false videos were forced to commit suicide out of humiliation and shame at facing there family members. It has various other facets, primarily misinformation and disinformation. This article discusses fake news and its impact and consequences on the world, along with the global legal framework.

Fake news and disinformation

Fake news

Fake news is a piece of news that lacks credibility. Credibility has to do with words that describe the information. If someone explains the meaning of “intellectual property” in a way that he could put across his understanding to the listener or reader, then the disseminator is credible. Or, if an organisation that has never dealt with medical health, like any space agency, publishes news on its website that “70% of people in the world have poor physical strength.” Then this piece of information should not be taken seriously, as the agency has nothing to do with medical fitness. Simply put, it should not be believed. Before relying on any piece of information, one must decide if the source is believable or simply trustworthy.

Fake news is fabricated to intentionally dupe or mislead the targeted audience for any wrong purpose, like disturbance of peace in society, to create dissatisfaction in public with respect to any affair of the state, or to tarnish the image of any organisation. This type of disinformation is created with the purpose of deceiving the targeted audience and often involves the fabrication of events, the distortion of facts, or the dissemination of false stories. Such pieces of information lack not only credibility but also the reasoning behind the foundation of the information. It does not address the public’s emotions but rather arouses them for any negative outcome. Fake news can be transmitted through various channels, including newspapers, magazines, television, radio, blogging sites, networking websites, and other online sources. However, the  main culprit that gave rise to its concern is social networking sites, which transfer information from one user to another at a much faster pace than the blink of an eye.

The impact of fake news has been found to be prominent, changing public opinion, perceptions, and even socio-political, social, or socio-economic outcomes. Sometimes people believed in “WhatsApp” forwards or any other website link and took it as true and it led to severe arousal of anger and defamation. In a case of mob-lynching five members of a nomadic community were brutally mob-lynched because of a video on WhatsApp that said these people were child-lifters. Later, during the investigation, it was found that those videos were fake. This tragic incident foretells the implication that the spread of fake news leads to any public outcry ultimately resulting in crime. If this video had not been forwarded in the blink of an eye, then this horrific incidence would not have occurred. Those innocent nomadic people that form part of our cultural heritage would be alive. If the users of WhatsApp used their critical reasoning or tried to verify its veracity, then it would be stopped.

Recognising and combating fake news have become critical endeavours in fostering an informed and resilient society. Information is ubiquitous. Information is found everywhere in several manifestations like blog, microblogs, articles, daily news, journals, audio, video, comments, archives, books, etc. All of these require heightened awareness to critically assess their veracity, except the orders, rules, laws, ordinances, and court judgements that are backed by reliable authority, deep research or any diligent proceeding. Several countries have taken steps to combat the spread of such disinformation, misinformation or fake news by assimilating teachings regarding media and information. It include teaching such skills to school students so as to understand how information can be manipulated, how the information can be analysed and critically examined. Finland is the first European country to follow it, followed by Sweden and the Netherlands. However, this approach is not easily implementable in developing countries because of a lack of resources, training, awareness and cultural,linguistic and geographical disparities. Also, the former President of the United States of America, Mr. Donald Trump, took a significant step by calling off all the protection from social media sites regarding any news published on their platform. In India, an amendment was proposed in January 2023 to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. Analysing and removing fake news and disinformation requires a multi-faceted approach, including legislative measures, school education, and even home learning, to curb the menace of fake news and also avoid unwanted and unforeseen incidents.

Disinformation

Disinformation refers to the planned dissemination of false or deceiving information with the intent to cheat, manipulate, or change public opinion. It can be generated to develop a personal brand or to establish oneself on social media by showing that the influencer is an expert. Disinformation can also be spread through personal communication. Unlike misinformation, which may involve the inadvertent publicization of false information, disinformation involves a deliberate effort to author a false narrative or alter perceptions. It may be like someone pretending to be an expert in finance and intending to divert the customer’s savings to any policy for which he has a fixed commission. Fake news and disinformation are hand in glove phenomena showing the intentional propagation of wrong, incredible information with the aim of profit making or fooling the public or any individual. Both fake news and disinformation pose significant challenges like disturbance of harmony, erosion of confidence. Redressing these issues requires an approach that integrates global legal frameworks, technological advancement, media literacy programmes, and global collaboration to protect society from the clutches of the devastating demon of false information.

Creation of deceptive content using artificial intelligence algorithms 

Artificial Intelligence has paved the way for quick content creation that can be used to manipulate others and that can also be deceptive and misleading. Large Language Models (LLMs) can recognise, generate and predict human languages through already available resources. They are widely used in human written text, which is actually not written through human intelligence. By leveraging the power of generative artificial intelligence tools, credible content is created to gain the attention of the user. This is the ability of artificial intelligence to create far more than just persuasive content and to spread it in large volumes immediately. 

Deep fake: impersonation using deep machine learnings

Deep fake is a type of artificial intelligence that is used to create audio, images, and hoaxes that look original. For example, a photo of a married couple can be used to create several other photographs of the same couple. To create real looking photos, their faces can be copied and pasted on another couple’s photographs to steal the background or clothes. Such deep fakes are meant for entertainment but if injected into social networks and circulated around the web, they can be misleading and also create suspicion regarding the veracity of the original piece.

Another example can be of any video where the face of the original speaker can be swapped with another, the voice can be changed by the voiceover of the video or one audio file can be inserted by way of video-editing. One such reporting incident was that of the Ukrainian President in the year 2022, when he was found asking his troops to surrender. Also, deep fakes are quite common in the “porn industry” to earn profits. Deep learning training techniques gather data from a pool of information, like an abundance of photographs, to create any face that looks like a real person’s face but actually the person shown doesn’t exist in the world; it exists only in the digital or virtual world. 

Deep fake technology has been used for decades and has the potential to be exploited to create fake news, misinformation, disinformation and even disturbances of peace in society by arousing negative emotions in the public.

Impact of fake news and disinformation on society

The impact of fake news and disinformation, on society can be grotesque and wide-ranging. Here are some key ways in which it can affect individuals and communities:

Public confidence

Disinformation shatters the confidence of society with respect to the disseminator, person, institution or society in the mind of the listener. When anyone reads, listens to fake news and later realises its reality, it becomes almost impossible for him to trust any information from that source or about that target.

Social cohesion

Fake news can contribute to social division. For example, through any messaging app, a video is circulated about a killing scene only to spread hatred. It is only a movie scene but shown as a riot or any crime that has happened in the neighbourhood of the viewers, only to arouse the negative emotions of the viewers. Many times, such videos give rise to Mob-Lynching as well.

Medical misguidance

Disinformation by way of alternative medicine or even in the name of Ayurveda is spread across the world wide web, where it is stressed that the medications on which you are relying are doing more harm than good and can have a malefic impact on the well-being of the recipients of such information. Wrong information about medical treatments, home remedies, or spectacle removal by way of an herb, even without any patent or proper research, instigates  the recipient to not trust his doctor. Fake news created to tarnish the image of medical personnel or any medical institution can lead to misguided decisions by even those patients who were cured successfully in the past. They then convinced themselves that they were protected by destiny. Such information results in low recovery, untimely deaths, and too much fear in the patients and their families.

Political vendetta

Disinformation is a powerful tool in the hands of political organisers to secure votes. It undermines the democratic nature of society. Political organisers may use fake news to create confusion in the minds of citizens.

Impact on the economy

We are living in an era of endless-scrolling because of the firehose of information available on the internet. This increases the misguidance with respect to the financial system or any financial institution. This can be done by any representative of a financial institution in person as well. Only to secure the interest of one individual from several investors is compromised. It has led to fraud, too.

All these impacts discussed here are just the tip of the ice-berg. There are several impacts remaining, to name a few, impact on decision-making, cyber-security, national-security, strain in professional as well as family relationships.

Information literacy

Information literacy is the ability to find and discern desired information, it can be a valuable tool to combat the menace of fake news and disinformation in the digital age of information overload.

Following are the steps to information literacy:

  1. Define: A user should know what information they require. 
  2. Find: The second step is to locate the information. It includes finding, accessing, and retrieving the information. This information can come from any source and may be online or paper-bound.  
  3. Evaluate: The next step is to decide its credibility. So, one should ask a few questions regarding the credibility of the information. Whether I was looking for this information? Is it trust-worthy? Who is the disseminator? If a space agency publishes advice about a pandemic, does the Health Department of State disseminate an advisory on the pandemic? Of course, the latter is more trustworthy.
  4. Organise: The collected information should also be presentable; otherwise, if the first and last points mix up, it may propound a new theory. The organisation of information is necessary to make use of the information in a proper way.
  5. Communication: Communication means transmission of information from one channel to another, from source to destination, or making it available to the intended user. It should be as per the needs of the recipient and competence of the disseminator. It should be done with competency and understanding in legal and ethical manner.

UNESCO’S global initiative on media and information literacy freedom of expression across borders 

Freedom of expression, a special feature of democratic societies, expressed by way of voting, public speech, media, film-making enables individuals to raise their opinions and share information among themselves. However, this fundamental right faces a challenge in the form of disinformation. Striking a balance between the preservation of freedom of expression and reducing the malefic impact of disinformation is a pressing concern today.

UNESCO’s Global Initiative on Media and Information Literacy aims to raise awareness regarding the use of media and information literacy to combat the overwhelming pool of information and the growing dissemination of fake news and disinformation. This is a welcome step by UNESCO to safeguard the right to expression under Article 19 of the Universal Declaration of Human Rights, 1948.

This programme aims to empower the masses to apply critical thinking and reasoning skills before believing any piece of information. To ascertain the veracity of the version of the author or presenter, they must be digitally literate and capable of evaluating the information or media they consume.

Legal challenges in digital age

Difficulty in defining fake news and disinformation

The terms “fake news” and “disinformation” are used interchangeably by the readers. But their meanings are contextual and as per the purpose of their dissemination. These terms have the quality of being interpreted in a different fashion from person-to-person. This makes it challenging to define these terms holistically. However, from time to time, an inclusive header can be prescribed, subject to amendments as per the advancements in the digital age.

Lack of international standards

The international standards regarding fake-news and disinformation lack global coverage or, simply speaking, they are still evolving. The digital information landscape is continuously evolving and poses challenges to addressing and redressing this menace at the global level.

Balance of freedom of expression and disinformation

The United Nations Human Rights Council has clarified from time to time that prosecuting and punishing journalists for the publication of fake news or false news is  violative of Article 19 of the International Covenant on Civil and Political Rights. Provisions regarding false news under media laws serve as barriers on freedom of expression. It unduly limits the exercise of freedom of opinion and expression. In 2000, on the promotion and protection of the right to freedom of opinion and expression, the UN Special Rapporteur urged all governments that press offences should not be punished with imprisonment unless they are found to involve cases regarding racism, violence, or discrimination.

Measures to curb the menace of fake-news and disinformation

Global measures

The Joint Declaration on Freedom of Expression and “fake news”, disinformation, and propaganda

It is an international endeavour to tackle the challenges arising from disinformation. It was adopted on March 3, 2017 by the United Nations Special Rapporteur on Freedom of Opinion and Expression, the Organisation for Security and Co-operation in Europe (OSCE), the Representative on Freedom of the Media, the Organisation of American States (OAS), the Special Rapporteur on Freedom of Expression and the African Commission on Human and People’s Rights (ACHPR).

The joint declaration advocates for the concern of freedom of expression and redresses the challenges posed by the spread of ‘fake-news’ and ‘disinformation’. It calls attention to the role of society and social institutions as a whole in curbing the menace by bringing together the masses, technology platforms, and governments to promote media literacy, transparency, and accountability, along with protecting freedom of expression. It presses on the need for critical thinking to ascertain the veracity of the version.

Measures initiated in india

  1. Press Council of India: Press Council of India was established to preserve the freedom of the press and to maintain the standards of newspapers and news agencies in India. It was established under the Press Council Act, 1978. This ensures the dissemination of news of public interest.
  2. Amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021: These amendments are notified for open, safe, trusted and accountable internet. These amendments provide for  a consummate framework for online gaming. Also, they provide for fact checking regarding content pertaining to the government.

These amendments protect citizens from online betting and wagering by banning them completely.

Landmark cases in India regarding fake news and freedom of expression

Rahul Gandhi vs. Union of India (2018)

The 2018 Supreme Court case of Rahul Gandhi vs. Union of India was a landmark case in India that dealt with the issue of freedom of expression and the right to privacy. The case was brought by Rahul Gandhi, a prominent Indian politician, who challenged the constitutional validity of Section 499 of the Indian Penal Code, which criminalised defamation.

Rahul Gandhi argued that Section 499 was overly broad and vague and that it had a chilling effect on freedom of expression. He also argued that the right to privacy was a fundamental right that was protected by the Indian Constitution and that Section 499 violated that right.

The Supreme Court agreed with Gandhi’s arguments and struck down Section 499 as unconstitutional. The Court held that the right to freedom of expression was a fundamental right that was essential for a democratic society and that Section 499 was not a reasonable restriction on that right. The Court also held that the right to privacy was a fundamental right that was protected by the Indian Constitution and that Section 499 violated that right.

The Rahul Gandhi vs. Union of India case was a significant victory for freedom of expression and the right to privacy in India. The case helped to establish the principle that these rights are fundamental rights that are protected by the Indian Constitution. The case also had a significant impact on the way that defamation cases are handled in India.

In addition to the above, here are some other key points about the Rahul Gandhi vs. Union of India case:

  • The case was heard by a bench of three judges, led by Chief Justice Dipak Misra.
  • The judgement was delivered on July 25, 2018.
  • The judgement was unanimous, with all three judges agreeing with Gandhi’s arguments.
  • The judgement was widely welcomed by human rights groups and free speech advocates.
  • The judgement has had a significant impact on the way that defamation cases are handled in India.

The Rahul Gandhi vs. Union of India case is a reminder of the importance of freedom of expression and the right to privacy in a democratic society. The case also demonstrates the power of the courts to protect these fundamental rights.

Prashant Bhushan vs. Union of India (2019)

The 2019 Delhi High Court case of Prashant Bhushan vs. Union of India was a landmark case that dealt with the issue of freedom of speech and expression in India. The case was filed by Prashant Bhushan, a prominent lawyer and activist, who had tweeted two tweets criticising and spreading fake news about the Supreme Court of India and the then Chief Justice of India, Dipak Misra. The tweets were deemed to be contemptuous of court, and Bhushan was charged with criminal contempt.

The case was heard by a bench of three judges, led by Justice S. Ravindra Bhat. The bench held that Bhushan’s tweets were indeed contemptuous of court, but that they did not warrant a prison sentence. The court found that Bhushan’s tweets were made in the public interest and that they were not intended to interfere with the administration of justice. The court also noted that Bhushan had apologised for his tweets and that he had no history of contempt of court.

The Supreme Court of India upheld the Delhi High Court’s decision in 2020. The Supreme Court held that Bhushan’s tweets were contemptuous of the court but that they did not warrant a prison sentence. The Court found that Bhushan’s tweets were made in the public interest and that they were not intended to interfere with the administration of justice.

The Prashant Bhushan case is a significant precedent for freedom of speech and expression in India. The case shows that the judiciary is willing to protect the right to criticise the government and the judiciary, even when such criticism is expressed in a contemptuous manner. The case also shows that the judiciary is willing to consider the public interest when determining whether or not to punish someone for contempt of court.

The Prashant Bhushan case is a reminder that freedom of speech and expression is a fundamental right in India. The case shows that the judiciary is committed to protecting this right, even in the face of criticism of the government and the judiciary.

These landmark cases have had a significant impact on the regulation of fake news in India. The Supreme Court and the Delhi High Court have recognised the importance of protecting freedom of speech and expression but have also emphasised the need to curb the spread of fake news and hate speech. The government has also taken steps to address the issue of fake news, including setting up a committee to examine the issue and recommend measures to address it.

Conclusion

With the growth of information technology and its rapid spread among the masses, several challenges were posed to society regarding the safety of their privacy and reputation, as any piece of information can be spread in a matter of jiffy. Fake news can easily be shown as real through the use of generative AI. Any photo or video can be created resembling real and appealing.

UNESCO’s Global Initiative on Media and Information Literacy raised awareness regarding the use of media and information literacy to combat the staggering outburst of information and the growing dissemination of fake news and disinformation. This is a heroic step by UNESCO to safeguard freedom of expression. There are several challenges to ending the thunder of ‘fake-news’ and ‘disinformation’. The world requires a holistic charter or declaration for this concern. So far, we have made declarations regarding freedom of expression and media literacy. This throws light on the procedure for the proliferation of unwanted information but does not redress or categorise the fake-news or false information. There is also a lack of proper grievance redressal mechanisms, neither at the national level nor at the international level.

Till now, we have only had two potent shields to save us from this nuisance, critical thinking and information literacy. Critical thinking also has limitations due to age, mental disorders, and the and the tendency to trust someone. Many times, authors also ensure credibility by exaggerating their identities. Any novice may pretend to be an expert on the subject. Information literacy has the challenge of its accessibility, many times, genuine information is locked in high subscription databases only.

In this age of digitization and inquiry, society needs to educate itself by way of continuous learning, culminating proper research skills and examining the information on the scale of credibility, sensitivity and logic together with ethical principles.

References

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