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Is there a case for penalizing fake news?

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Is there a case for penalizing fake news? In May 2017, rumours of child-lifters on the prowl circulated on WhatsApp led to the lynching of seven men in Jharkhand.

The same month, the administrator of a WhatsApp group was arrested and later released on bail after a member of the group posted a “morphed” photograph of Prime Minister Narendra Modi wearing a garland of shoes.

A month earlier, following the assembly election in Uttar Pradesh, a district magistrate and a police official issued a joint order warning that WhatsApp group administrators could be slapped with criminal charges if factually incorrect or rumours were circulated in the group. Officials in Bihar followed suit, issuing similar orders against circulation of hoaxes.

These are just a few instance of ‘fake news’ on digital platforms that India had to deal with in 2017. Between June 2016 and May last year, more than 20 criminal complaints involving online content were filed, and many people were detained for content circulated on WhatsApp or published on Facebook, as per research organisation Freedom House.

As the consequences of bogus news become more pervasive, stoking resentment and violence, many South Asian countries such as Philippines, Indonesia, and Vietnam have sought to treat the manipulation of content as a criminal offence.

“It is not penalising, but defining ‘fake news’ which is a challenge,” said Max Smeets, Cybersecurity fellow at Stanford University. “We currently lack a common definition of fake news. Is it about fake personas, spam, data theft, seeding stories in the press or creating fake stories? We have to be clear by what we mean if we want to penalise fake news (or more generally tackle it).”

Criminalising dissemination is difficult mainly because people who disseminate the information are not necessarily aware that they are involved in this practice.

The inherent ambiguity has led certain governments to frame stringent laws to deal with the menace. Philippines President Rodrigo Duterte signed stricter laws authorising punitive action resulting in a jail term of up to six months and heavy fines of up to an equivalent of Rs 2.5 lakh for publishers of fake news. But Duterte’s version of the law applies to anyone who expresses a contrarian view of the government or “causes damage to the state”. The government has set up a special task force in the national police to look into fake news, but experts say it amounts to a witch-hunt in the guise of a clampdown on fake news.

The proliferation of ‘fake news’ through misinformation and hyper-partisan content came to the fore in the run-up to the 2016 Presidential election in the United States. Facebook and Twitter have been under increasing scrutiny for allowing targeted political ads from Russia-backed entities to manipulate voters and influence elections.

Since then, “manipulation and disinformation tactics played an important role in elections in at least 17 other countries over the past year, damaging citizens’ ability to choose their leaders based on factual news and authentic debate,” as per Freedom on the Net 2017 report.

In one of the most high-profile crackdowns on the fake news in 2017, Indonesian police incarcerated administrators of organised crime ring Saracen, which peddled racist and sectarian fake news against political parties. “Indonesia had to start fighting ‘organised fake news’ organisations such as Saracen who were launching targeted fake news campaigns on behalf of political parties during the periods leading up to major elections,” said Spandana Singh, Millennial public policy fellow at New America.

With more than 800,000 followers on Facebook, the admins made millions through advertising revenue by creating memes and fake posts on their page. As a result, on January 3, Indonesia launched a separate cybersecurity task force to bring purveyors of fake news to task.

“Criminalising fake news is counterproductive,” said Sunil Abraham, executive director of the Centre for Internet and Society. “The trouble with criminalisation is the person circulating the news is ‘fooled’ and is unaware of the crime they are committing. It is very similar to copyright infringement at a non-commercial stage. Many just don’t know,” Abraham said.

“Fake news cannot be battled by the government alone. Often it is the parties in power who are involved in many fake news cases,” he said.

How do we fix this?

Of the 3.4 billion people with access to the internet, 42% live in countries where governments employ armies of “opinion shapers” to spread government views and counter government critics on social media, as per the Freedom on the Net 2017 report.

In the West, corporations are typically the ones that are expected to take up the mantle to tackle fake news. “But government censorship and corporate censorship are not the appropriate ways forward, as this impinges on freedom of speech,” Abraham said.

This raises the question as to who should fix the problem. For starters, in the European Union (EU), Germany has passed a law called the Network Enforcement Act or NetzDG advocating a crackdown on “punishable false reports”. Enforced in October 2017, the hate speech law mandates that companies remove hate speech within a certain time period, and this was created with the intention of also curbing fake news.

Policy experts say the only way forward is more collaboration among various stakeholders. In India, there are organisations such as SM Hoax Slayer and Altnews working to combat disinformation, but “stronger digital literacy, education, and transparency is the way to fight it”, Singh said. “Since there is a business model which has been established for fake news, more people may also try to join the illegal disinformation industry if it continues to prove profitable,” he said.

While existing laws are fragmented, Abraham offered a different policy view of the problem at hand. “The only way to combat bad speech is with good speech. Instead of criminalising, you can mandate public service announcements in on social media channels,” he said.

That is, if someone is using fake news to spark a riot, under the circumstances of an emergency, the government should be allowed to push actual facts around the area even in private WhatsApp groups. “A message similar to a ‘must carry’ obligation in broadcast regulation can come in,” Abraham said.

For instance, Catalan is a minority language in Spain but all Spanish language broadcasters must carry some amount of news in Catalan, Abraham said, adding this could be one way of dealing with if not eradicating fake news.

So far, the only solution to prevent rumour mongering in “sensitive” areas in India has been blocking social media sites and suspending internet services. There have been nearly 40 information communication technology (ICT) shutdowns ordered by local authorities, some lasting several months in Jammu and Kashmir, as per the Freedom on the Net 2017 report.

“Platforms like Facebook, WhatsApp, Twitter and the like are different from each other. This makes it difficult to set common standards for all organizations and to compare them fairly,” Smeets said.

“It is especially difficult for highly compartmentalised platforms like WhatsApp to deal with fake news, compared to a more public forum like Facebook,” he said.



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