Countering Fake News During Elections: A Need For Legal Reforms

Mahima Chhabrani

Dissemination of fake news on social media is posing a threat on free and fair elections, a fundamental tenet of democracy in India. 

FAKE NEWS IMAGE

Introduction

Fake news, misinformation, false news are terms that are now being used interchangeably. This does not overshadow the menace and public hazard that fake news has become over social media. World Economic Forum has rated the spread of false information online as one of the ten biggest global problems in 2013. The consequences of fake news are not one but many. The author, through this article, has delved into analyzing electoral laws and psychological concepts behind the fake news.

In part II, the author has attempted to analyze the impact of media on society during an election. This part further deals with the psychological mindset of the society that leads to the generation of fake news and that it necessitates concrete legislation in place to regulate fake news during the time of elections. Part III points out the gaps in the current applicable electoral laws and regulations in India.

Human Mind And Algorithm: Agents Of Fake News?  

The first concept is “motivated reasoning,” the ideas that we readily believe because they match our views and beliefs. Once a stance is chosen, the brain then constantly keeps filtrating information until he finds one that confirms his beliefs while rejecting the opposing views. This process is known as confirmation bias.

In the Indian scenario, the political disparity in India is starkly evident. People who support Narendra Modi led BJP government would oppose any outrageous things about them put forth by the opposition. The implicit bias here is so much so that people who tend to have a particular set of beliefs would not cross-check facts on receiving if that information confirms with their set of beliefs.

Ahead of elections, political parties spend hefty amounts into creating groups on WhatsApp chats to send doctored images, videos, and memes. The problem stems from here. By 2019, nearly 39% of people in India own a smartphone and more than 90% of these users have WhatsApp installed in their smartphones. These group chats are used by the political parties to disseminate fake news, most of which gets circulated by way of forwarded messages. These images and videos are curated to match the beliefs of people in any particular group.

Scholars have coined terms like “echo chambers” and “filter bubbles” to define preferential viewing on social media. In the Indian political scenario, these WhatsApp group chats are “echo chambers” and “filter bubbles” created by people with similar political ideologies. There is no room for contrary perspectives, thus increasing political polarization.

Along with individual preference, social media platforms employ algorithms that reinforce these “filter bubbles” by curating information based on previous searches and likes. This one-sidedness of information hampers citizens’ critical thinking, which is essential to the functioning of democracy.

Need For Systematic Regulations: A Necessity 

Despite several attempts at tweaking electoral laws and regulations to fight the evil of fake news, data suggest that the Election Commission of India has reported 154 incidents of fake news over social media during the 17th Lok Sabha General elections 2019. Although the policy-makers’ steps and regulations are in the right direction, the existing loopholes need to be filled.

1. Definition Of ‘Fake News’

No Indian statute or regulatory guidelines has defined what is news or has laid down criteria for defining fake news. Any amendment in the existing legal framework should begin with defining this term.

Learning from the experience of other countries, any regulation that defines fake news as simply consisting of falsehood may lead to an ambiguous and overbroad definition. This has been witnessed in the case of Malaysia’s Anti-Fake News Act, 2018, which defines fake news as “news, information, data, and reports, which is or are wholly or partly false or in any other form capable of suggesting words or idea.” However, a bill to repeal this act has been passed under the Malaysian Federal Constitution. Such a definition would fail in a democratic country like India, where the citizens are guaranteed freedom of speech under the Indian Constitution. Furthermore, it will give the government an unfettered power to take down any content that it feels uncomfortable with.

Another example is that of law in France that lays down three criteria to evaluate a piece of information as fake news. Firstly, the fake news must be manifest. Secondly, there should be a deliberate attempt towards the dissemination of such news on a large scale. Thirdly, it should lead to a disturbance of the peace or compromise the outcome of an election. While the last two criteria could seem to fit in the Indian regime, the first one brings in ambiguity. In order to bring clarity at the most fundamental level, policymakers must distinguish between harmless propaganda and verifiable misinformation that can cause imminent social harm or damage to the reputation of an individual. This line is not easy to draw as the term fake news in itself is an amorphous category, including misleading and false news, unverified content, doctored videos, hoaxes, and even morphed pictures in the nature of memes. The evaluation may involve mere shoddy journalism from deliberate attempts to spread misinformation.

After the policymakers make these necessary distinctions, according to the author, a potential definition that could fit in the Indian scenario could be “Any misinformation or disinformation deliberately disseminated on a large scale that has the potential to threaten the life or national security or an election outcome.” This definition can make it slightly easy to eventually impose responsibility on online platforms when needed and allow for government intervention when the line is breached.

2. Hidden Election Expenditure

Representation of People’s Act (hereinafter RP Act) prohibits the political parties and contesting candidates to display their advertisements on any social media sites while observing the silence period. While RP act prohibits the political party, the problem is more significant than it appears to be. The Election Commission of India (hereinafter EC) published the Manual on the Model Code of Conduct (hereinafter MCC), which requires political parties to disclose social media accounts and handles and total expenditures on social media campaigns. These steps are in the right direction; however, some loopholes and lacunae need to be fixed.

Firstly, these regulations do not take into account the presence of the external agents – political consultancy firms and unpaid volunteers that help disseminate fake news.  Reports show that political parties in India have resorted to exploiting constituency-wise data to form WhatsApp groups to increase its volunteer base. With each group having 256 members, any piece of information through this route can reach substantially large populations, thus influencing and shaping their political opinions.

The political parties use the services of political consultants who outsource their services on a contractual basis. These consultants charge according to work, ranging from conducting surveys to data analysis to handling social media accounts to laying political strategies for the political parties. With more regulations on disclosure of a political parties’ social media accounts of the in-house IT cells and social media houses, there is a rise of these agents in the elections. In the present legal framework, no provision covers these agents, so political parties can spend hefty amounts on hiring these agents as this expenditure does not form a part of the election expenditure.

3. Transparency In Reporting

In an attempt to make the internet a transparent place, besides the already existing provisions in RP act and Conduct of Elections Rules, the social media platforms Internet and Mobile Association of India (IAMAI) and have agreed to adhere to a “Voluntary Code of Ethics”  (hereinafter code) during General Elections 2019. This code has laid down to act against the paid advertisements that violate the norms set by EC in the RP act and other electoral laws applicable. The code is an essential step to keep people’s faith intact in the electoral process, which seems too shaky by proliferating fake news on social media.

The online intermediaries are getting better at tackling the problem by introducing helplines that can be contacted by anyone who encounters fake news, employing third-party fact-checking organizations for elections, and performing the primary and most essential task for due diligence. However, there is still a need for reforms as these guidelines are unclear on certain aspects. Firstly, when encountering fake news that violates the provisions of RP Act, EC informs the social media platform, which then gets a period of 3 hours to remove the content. The potential problem that may arise is in a different understanding of fake news. The code requires the platforms to take down content that EC finds objectionable. In such a situation, what qualifies to be fake news for EC could not be the same for the platforms. The code is silent about the course of action to be taken in case of arising contradiction between the platforms and EC in understanding any piece of information.  This highlights the need to have a fixed standard for assessing any piece of information. Secondly, the EU adopted a similar code of conduct; however, it faced heavy criticism on the grounds of voluntary nature of the code that puts no pressure on the platforms to discharge their obligations. A similar situation might arise in India because the code is agreed upon voluntarily by the intermediates; therefore it lacks any formal enforceability. Fourthly, all the platforms work differently. While it is easier to take down content from Facebook, it is extremely difficult to take down content from WhatsApp because it is a platform that provides end-to-end encryption of the messages to its users. As per the law, taking down content from WhatsApp requires a court order to protect the state interest. Therefore, meeting the timeline of ‘3-hours’ as suggested in the code seems challenging for the EC. Any action otherwise taken would impinge upon the privacy of citizens, which is guaranteed under the constitution.

Conclusion 

Ultimately, the effects of fake news can prove to be detrimental to the functioning of democracy like India. All the stakeholders- lawmakers, online intermediaries, and the citizens have a collective responsibility to curb fake news. While lawmakers can keep amending the laws, the citizens’ duty lies to gain awareness about media literacy. The responsibility lies equally among the general public to educate with the necessary information to critically analyze information and then make deductive conclusions. On the other hand, tech platforms need to ensure the use of a sophisticated algorithm to present the public with correct, accurate, and truthful information.


The author is a student at the National University of Juridical Sciences, Kolkata (NUJS).


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