The present social media regulations fail to address the psychological effects of fake news and exceed the scope of delegated legislation.
Fake news includes a false statement of facts intended to deceive and published. It has become a global issue due to its ability to manipulate individuals and shape their views. It delegitimises objective facts and impedes rational discourse. This menace of fake news is aggravated through social media platforms such as Twitter, WhatsApp, and Facebook. The universality and rapid flow of information over social media enable its users to generate and share content in the form of texts, videos, audio files and pictures.
There are various provisions under Indian law to counter the spread of false information. §54 of the Disaster Management Act, 2005, sanctions the dissemination of incorrect information during a disaster. Misinformation that induces people to commit an offence against the state and public tranquility is punishable by §505(1)(b) of the Indian Penal Code, 1860. Further, §79 of the Information and Technology Act, 2000 (‘the Act’), is specifically related to intermediary liability for hosting third party information. Intermediaries include social media platforms under §2(1)(w) of the Act. The government has the power to issue guidelines to regulate intermediaries while hosting third party information.
The Ministry of Electronics and Information Technology (‘the Ministry’), through the means of delegated legislation, has recently invited suggestions for the Information and Technology (Intermediary Guidelines) Rules 2018 (‘the Rules’). These widely contested Rules are an amendment to the Ministry’s 2011 Rules. The Rules are aimed to counter the spread of fake news over social media platforms. The author does not deem the Rules as an appropriate and effective method of regulating fake news.
The purpose of countering fake news does not merely include the act of stopping its spread but also includes effectively providing users with the correct counter-narrative. The scope of this paper will be limited to highlighting this insufficiency in the present laws through a psychological analysis. Finally, the paper will provide both legal and policy recommendations.
The Psychology of Fake News
In order to formulate effective regulations to deter fake news, it is imperative to understand the cognitive mindset of humans. Humans have fallible memory and are susceptible to falsehood and distraction. The human brain remembers information irrespective of its veracity.
At the beginning of forming opinions based on the information acquired, the earlier acquired information is likely to have more weight than later accumulated information. This is termed as the primacy effect. The evaluation of the information acquired later is often prejudiced and partial to the prior assessment of information. Primacy effect and reinforcement of information results in the persistence of a particular belief where it is difficult to change the opinions of the individuals.
Rule 3(8) of the Rules calls for intermediaries to pull down information specified by a government notification or a court order within 24 hours. Information through social media reaches its users at a rapid rate. Therefore, fake news can travel fast and in abundance, resulting in the primacy effect in individuals well before such information can be pulled down.
After pulling down such information, there are no effective policies to notify the users of the same and provide with the alternative, correct information. The Press Information Bureau (‘PIB’) has a fact check website which identifies misinformation related to the government’s policies. However, to make this an effective process, it requires an individual to follow such information actively and doesn’t take into account the digital illiteracy in India. The mere 1.5 lakhs combined followers of this fact-checker on Twitter, Instagram, and Facebook highlights its ineffectiveness. Moreover, it only deals with government policies and the Rules do not impose any obligation on the government to continuously share the redacted information on the PIB fact-checker.
Thus, the users who have already formed opinion due to fake news are not provided with the correct information once the information is censored. Therefore, even though the information may be deemed false, the primacy effect will prevent most users from changing their opinions. The current laws only focus on bringing the information down and do not aim at the broader goal of providing the right information to the individuals and seeking a discourse based on objective facts. They fail to take into account the cognitive processes that occur in the human brain, which is susceptible to imbibe false information. Therefore, the present social media regulatory laws are not sufficient to counter fake news.
The author has two recommendations to make based on the above analysis. First, under Rule 3(8) of the Rules, censorship of information based on actual knowledge of a government notification should be removed. This provision is in direct contravention to the case of Shreya Singhal v. Union of India¸ where it was held that only the actual knowledge of a court order should apply to an intermediary. Moreover, under Rule 3(8), upon issuance of a government notification, the party is not given a chance to present its challenge. Thus, this violates procedural due process.
Further, such unrestricted power to the government to take down information is similar to the powers granted to the government in China. This may, in turn, result in the Streisand effect witnessed in China where the aggressive policy to censor material not conforming to government’s narrative resulted in citizens believing that the censored information was itself correct. Thus, this will result in solidification of the primary opinion, and this opinion will be susceptible to change even when the news is fake.
However, the above suggestion is not with the view to legitimising the process through which the Rules are being implemented. It is contended that the Rules are themselves an excessive power exercised under delegated legislation. The legislature has the power to delegate its functions to an executive authority such as the governmental ministries. However, the executive does not have the license to perform essential legislative functions such as repealing, altering or modifying the scope of the existing laws. The role of the external authority is merely to fill in the procedural voids.
The Rules act as an addition to the existing due diligence obligations of the intermediaries under §79 of the Act. These new obligations include removal of information within 24 hours, proactive identification and removal of content, and provision of information within 72 hours. Thus, the Ministry has exceeded its delegated power and altered the scope of the Act. Therefore, the Rules should be passed through the parliament by the legislature rather than by a governmental notification.
Second, as discussed before, the official fact-checker of the government is not an effective method of changing the narrative and reversing the primacy effect. Therefore, it is recommended that the government should take larger strategic efforts to communicate with users and provide correct information. The government can base its plan on Europe’s efforts of strategic communication at a national and regional level. These include the formulation of task forces to actively identify fake news and partnership with think tanks that publicly challenge falsehood and build social resilience against fake news. Since to tackle the primacy effect, the substitute correct, unbiased information needs to be provided, such collaboration with think tanks and formulation of task forces would help in reaching out to the more readers and add credibility to the information, changing the opinions of the masses.
The government can also collaborate with private fact-checking organisations such as AltNews, BOOMlive and Quint Webqoof that have been certified by International Fact-Checkers Network to widen their reach and sensitise people. Thus, this can help in changing the opinions of the users and tackling the primacy effect that occurs due to fake news.
The present laws, including the Rules, are insufficient to serve the broader purpose of tackling fake news which includes providing correct information to the users. The regulations fail to take into account the cognitive functions of the human brain that helps them form opinions. Once these opinions are formed due to the primacy effect and subsequent reinforcement, they are hard to change. Therefore, the government needs to implement policies to actively and strategically communicate counter-narratives to the fake news.
Further, Rule 3(8) of the Rules provide unrestricted powers to the government to pull down information. This increase in the scope of the Act is a misuse of the power of delegated legislation, and thus, the Rules should be passed through the parliament. Moreover, the government can use such powers to censor information that are not in line with their policy. It is observed these powers are similar to the powers of the Chinese government. In China, such unrestricted power further solidified the beliefs and opinions of the people through the primacy effect.
The author is a student at WBNUJS Kolkata