Justice Oliver Wendell Holmes Jr., in his famous dissent in Abrams v. United States,<1> referred to the concept of the “marketplace of ideas,”<2> whereby the “best test of truth is the power of thought to get itself accepted in the competition of the market.” In both India and the US, free speech can be restricted in certain circumstances, but the conception of the “marketplace of ideas” is both a justification of and a rationale for freedom of speech and freedom of the press. This concept has been judiciously utilised to ensure that free speech is curbed only in the most extraordinary of circumstances.
However, the “marketplace of ideas” is severely imperilled in the current post-truth era of fake news. The internet gives an individual “a platform which requires very little, or no payment to air his views,”<3> making it easier to disseminate with great ease all manner of ideas and information. With the increasing potency of social media, it has become ever more difficult to square with a “marketplace of ideas” conception of free speech, for something posted on a website “travels like lightning and can reach millions of people all over the world.”<4> It fosters conditions whereby “objective facts are less influential in shaping public opinion than appeals to emotion and personal beliefs.”<5> A study has recently confirmed that ‘fake news’ reaches more users and up to 20 times faster than factual (true) content.<6>
Thus, relying upon the competition in the marketplace of ideas to arrive at a conception of ‘truth’ is highly counterintuitive. Since the “marketplace” is flooded with fake news, which is in “competition” with the truth, it is necessary to contemplate the identification<7> of fake news and the grounds for undertaking the same.
In societies that pride ‘order’ over ‘liberty’ and do not believe in open access to information for each member of the society, fake news (or, more generally, lies) have little role to play, except when the government peddles them. However, both the world’s oldest and the world’s largest democracies have had fake news poison their single-largest act of democratic choice, i.e. the elections. The effects of fake news tend to be more pronounced during an election cycle. Although fake news may inherently be agenda-driven, in the build-up to an election, there exists a real incentive to create support and influence as fast as possible. Funding is at its maximum: political parties fund and create armies of trolls prior to elections, knowing full well that these armies must be enabled and ready to push false information that buys party influence and support during the critical election cycle.<8>
This works because the public is particularly susceptible to fake news during election cycles. Sensationalism tends to rise, and the fact that each news channel has a political tint plays in the minds of most people. This leads to the delegitimisation of all news and the creation of a post-truth reality: since nothing can entirely be trusted, people falsely equate broadly reliable—albeit somewhat politically slanted—news with outright false news. This makes false news even more impactful than it would otherwise be. If nothing can be trusted, false news is as good as real news.<9>
Pressure groups and organisations that favour a certain party or candidate can capitalise on this during an election cycle. When news cycles are short, they disseminate as much propaganda as possible, and by the time it starts being debunked, they move on to the next piece of propaganda. With numerous individuals at work simultaneously, content can go viral quickly. Since the citizenry doesn’t have a coordinated network of people working on debunking propaganda, the debunking will not go viral nearly as quickly or as widely. This barrage of content—true or false—leads to the narrative shifting to topics the party wants to talk about and allows them to take control of the conversation. Even Facebook and Twitter have acknowledged that this is a problem.<10>
As is customary in Indian society, which still views ‘policing’ through deeply colonial lens, the country’s response to fake news has been an attempt to, at its most archaic, seek and punish publishers of fake news or, at its most nuanced, block these users from social media. This paper proposes that both these strategies should be discarded.
First, it must be recognised that targeted blocking does not work. In addition to the logistical difficulties it presents, blocking large numbers of users is insufficient in stopping fake news from going viral. Articles go viral because the dissemination of news and its reach increases in a geometric progression when one person shares it. With each additional person sharing something, its reach doesn’t increase by merely two or three, but by 20 or 30. The more people willing to share and re-share, the more likely an article is to go viral.<11> Clearly, when dealing with large, organised social cells, each article is going to be shared and re-shared by thousands of people. Its reach is thus in the lakhs.
This has two obvious consequences. The first, and obvious, is that just about any piece of fake news shared with an agenda is likely to go viral. Larger organisations have thousands of people to share content, with the content spreading in a geometric progression and reaching lakhs. The second consequence is that it makes targeted blocking ineffective in countering fake news. Even if tens of thousands of accounts are blocked, fake news would still go viral and reach the citizenry.<12> Moreover, any move to ban or block expression will run into complications with the Constitution. Article 19(1)(a) of the Constitution of India provides that all citizens have the right to freedom of speech and expression.<13> Although not absolute, this right does fetter state power by allowing it to only place ‘reasonable restrictions’<14> on this right, and that too only “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”<15>
The above grounds are considered exhaustive, “and to plead for other grounds is to plead for unconstitutional measures.”<16> It is important to note that it is not open to the state to curtail the right to freedom of speech and expression “to promote the general public interest,”<17> nor can grounds available to restrict other rights be used to indirectly restrict that right.<18> Specific instances of ‘fake news’ can easily be restricted under the respective nine grounds, available under Article 19(2). However, this method of identification is wholly unsuited to dealing with over a million or so content pieces per hour on social media.
Nonetheless, regulation has been attempted. Instances of regulation (both state-driven and self-driven) include Norms of Journalistic Conduct,<19> issued by Press Council of India;<20> and Code of Ethics and Broadcasting Standards,<21> issued by News Broadcaster’s Association.<22> Further, under the Cable Television Networks (Regulation) Act, 1995,<23> it is mandated that all programmes must conform with the Programme Code,<24> which prescribes that falsities cannot be broadcasted.
However, none of these regulations are intended to perform a ‘lie-detector’ function. A lie detector’s job is not to prevent the subject from telling a lie under pain of bodily harm or death, but to simply inform the listening audience that the subject just lied. For instance, fake news that is laudatory of a public figure or glorifies programmes run by the government, does not fall under any of the grounds provided in Article 19(2). Additionally, people should not be harmed either through civil or criminal penalties for mere falsified glorification or for sharing an article that ruffled their feathers. Trying to ‘attribute guilt’ when your potential ‘suspects’ consist of a million citizens blended with some trolls—all in the duration of the average news cycle—is simply impossible. Therefore, it is not possible to comprehensively restrict all instances of fake news under any one of the grounds specified therein, or even all of them read together.
A ban-based model of developing jurisprudence on the right to free speech and expression<25> is dangerous for any democracy. Such a model would hinder the ideal of free speech and can lead to self-censorship.<26> Legitimate concerns exist of excessive state paternalism and the subsequent effects on the flow of information. It is hard to define concepts such as “facts” and “truth” in the context of criminal law, and a legal recourse that goes above and beyond constitutional restrictions on free speech is dangerous, to say the least.
For many years, social media companies have stated that they exist merely as intermediaries. They insist that the content being shared through them is not in their control and that they cannot be expected to seek out or censor any content, since it is not theirs. They have simply provided the land and cannot be held liable for any improper construction carried out on it.
Increasingly, this defence has become weak, particularly since social media started reviewing content that was flagged by users as offensive and taking it down because it violated their idea of community standards.<27> The defence became weaker still when it was first recognised that social-media websites weren’t a blank canvas and that they used proprietary-filter algorithms to promote specific posts and deprioritise others.<28> Clearly, they have a hand in the game and can influence what content gets consumed. The defence was finally completely destroyed in light of the Digital Millennium Copyright Act<29> and Delfi v. Estonia,<30> which stated that intermediaries had to actively ensure and monitor content and take down what had to be taken down. They could not sit by and wait for users to report it.
Social-media platforms are best placed to directly deal with the problem, being the gatekeepers of all of the content, with direct control over it.<31> Moreover, their algorithms have long prioritised pushing content without any examination of the quality. Now that they control on what goes viral (from which they make profit), they should have a corresponding duty to ensure that fake news does not go viral.
It is necessary to enlist the support of social media in calling out fake speech. A system that could work is one that focuses on identifying fake news and separating it from real news. The problem is that in today’s post-truth society, the two are increasingly conflated, and the common man may not know what to trust. It is important to not block out fake news but to simply expose that it is fake and may not be trusted.
The news bureaus and organisations that have attained a certain level of international recognition for honest journalism can have a blue tick put next to all content they share on a social-media website. Additionally, those that continue to share unreliable, misleading or downright false content could have a red cross put next to all content they share on social media. All other outlets will remain unverified and uncategorised until it is possible to ratify them. The mechanics of how reliable and unreliable news outlets shall be agreed upon is not within the scope of this paper. It is, however, possible to do so by looking at reputation, awards, lawsuits, the opinions of national press councils, the opinions of media organisations, creating an independent assessing body composed of industry experts, etc. Additionally, any content of a non-red-cross outlet individually flagged by users, reviewed by a social-media outlet, and proven to be fake will also be treated as an item shared by a red-crossed outlet.
Social-media websites and other gatekeeping platforms already account for many factors in their algorithms to determine what goes viral and what is popular. Thus, they should have an obligation to ensure that fake news does not go viral. They must modify their algorithms to prevent red-crossed item from going viral: it will simply be deprioritised, and all blue-ticked items under similar topics will be prioritised and shared. Additionally, if someone goes deep enough into their newsfeed to find flagged, red-crossed items, they will be shown only in conjunction with a blue-flagged item, one which is closest in substance to the red-flagged item, so a legitimate outlet for the same news is always accessible.
The fight against ‘fake news’ cannot be won by banning users or taking them to court. It can only be won by pushing legitimate news to the forefront, highlighting illegitimate news, and making sure that people know the difference. Therefore, the principle must be to identify what is false and trust the people.
Author would like to thank Kaustubh Chaturvedi and Aditya Wakhlu, students of law at NLSIU, Bengaluru for their valuable research inputs.
<1> Abrams v. United States, 250 US 616 (SCOTUS 1919).
<2> See Associated Press v. US 326 US 1 (SCOTUS 1945). “It is the purpose of the First Amendment to preserve an uninhibited market place of ideas in which truth will ultimately prevail, rather than to countenance
<3> Shreya Singhal v. Union of India AIR 1523 (SC 2015).
<4> Shreya Singhal v. Union of India, AIR 1523 (SC 2015).
<5> Oxford English Dictionary Online (Oxford University Press, 2018), s.v. “post truth,” accessed September 14, 2018.
<6> S. Vosoughi et al., “The Spread of True & False News Online,” Science 359 (6380) 1146 (2018).
<7> I have deliberately avoided the use of the word ‘regulation’.
<8> Mikas Matsuzawa, "Duterte camp spent $200,000 for troll army, Oxford study finds," Philstar Global; Swati Chaturvedi, I Am a Troll: Inside the Secret World of the BJP's Digital Army (New Delhi: Juggernaut Books, 2016).
<9> Samantha Bradshaw and Philip N. Howard, Challenging Truth and Trust: A Global Inventory of Organized Social Media Manipulation (University of Oxford).
<10> "Facebook, Twitter vow to ‘fight back’ in wake of foreign abuse," France 24.
<11> Alexander D. Jarvis, “K Factor: The 101 of Virality,” 50 Folds, 20 October 2017, accessed 15 December 2017.
<12> Eric Auchard and Joseph Menn, "Facebook cracks down on 30,000 fake accounts in France,” Reuters.
<13> The Constitution of India 1950, Article 19(1)(a).
<14> Chintaman Rao v. The State of Madhya Pradesh SCR 759 (SC 1950). “
<15> The Constitution of India 1950, Article 19(2).
<16> Secretary, Ministry of I. & B., Government of India v. Cricket Association of Bengal 2 SCC 161 (SC 1995).
<17> Shreya Singhal v. Union of India, AIR 1523 (SC 2015).
<18> Sakal Papers (P) Ltd. & Ors. v. Union of India 3 SCR 842 (SC 1962). “It follows from this that the State cannot make a law which directly restricts one freedom even for securing the better enjoyment of another freedom. All the greater reason, therefore for holding that the State cannot directly restrict one freedom by placing an otherwise permissible restriction on another freedom.” Emphasis added.
<19> Press Council of India, Norms of Journalistic Conduct: “1(i) The Press shall eschew publication of inaccurate, baseless, graceless, misleading or distorted material. All sides of the core issue or subject should be reported. Unjustified rumours and surmises should not be set forth as facts … 9(i) Newspaper should not pass on or elevate conjecture, speculation or comment as a statement of fact. All these categories should be distinctly identified.” Emphasis added.
<20> It has the power under the Press Council Act, 1978 to conduct inquiries in accordance with the Press Council (Procedure for Inquiry) Regulations, 1979.
<21> News Broadcaster's Association, Code of Ethics & Broadcasting Standards. “Section 1: Fundamental Principles (1) Professional electronic journalists should accept and understand that they operate as trustees of the public, and should, therefore, make it their mission to seek the truth and to report it fairly with integrity and independence.” Emphasis added.
<22> The News Broadcasting Standards Authority, constituted by the News Broadcaster’s Association by way of the News Broadcasting Standards Regulations, 2008 has the power to conduct inquiries.
<23> Cable Television Networks (Regulation) Act, 1995 s 5.
<24> Cable Television Networks Rules, 1994 Rule 6.
<25> Gautam Bhatia, “The Meesha Judgment: Book Bans and the Supreme Court’s Dangerous Grandstanding,” Indian Constitutional Law and Philosophy.
<26> Richard Priday, "Fake news laws are threatening free speech on a global scale,” Wired.
<27> Community Standards, accessed 14 September 2018.
<28> Matthew J. Jones, "The Rise of the Recommender System," LinkedIn.
<29> Online Copyright Infringement Liability Limitation Act, 1998 17 USC § 512(m)(1) .
<30> Delfi AS v. Estonia App no 64569/09 (ECHR 2013).
<31> "Gatekeepers or Censors? How Tech Manages Online Speech," The New York Times; UNHRC, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression 2015, UN Doc A/HRC/29/32, para 53–59.
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