Litigation Newsletter – Freedom of Speech and Fake News

INTRODUCTION –  

Freedom of speech is widely regarded as the cornerstone of democratic societies, as the foundation of any democracy lies in open and active public discourse. Accordingly, this right is considered inalienable in any nation that identifies itself as a democracy. In India, freedom of speech is enshrined as a fundamental right under Article 19(1)(a) of the Constitution of India, signifying that it cannot be revoked by any subsequent legislation or other means, except under exceptional circumstances such as a national emergency. However, like all other rights, freedom of speech is not absolute. In order to safeguard the collective interests of society, certain reasonable restrictions are permitted under Article 19(2) of the Constitution.  

Article 19(2) of the Constitution allows for reasonable restrictions on the right to freedom of speech to protect broader societal interests. These include safeguarding the sovereignty and integrity of India, national security, and public order. Restrictions also cover maintaining diplomatic relations, public decency or morality, and preventing contempt of court, defamation, and incitement to offences. These limitations ensure that the exercise of free speech does not harm the nation or its citizens. 

FREEDOM OF SPEECH IN PRESENT TIMES –  

Freedom of speech in the 21st century, however, is not a right that can be read in isolation. The advent of information technology in the last semi centennial has been unprecedented and domineering, to the extent that the internet is now the primary mode of communication as well as dissemination of information for the global majority. The right to access the internet has become so integrated with people’s lives that it has been recognised as a fundamental right by the Supreme Court in the case of Faheema Shirin R.K v. State of Kerala and Others. 

This widespread access to the internet has now become a double-edged sword owing to the fact that while it does facilitate instantaneous dissemination of information, most of this information goes unverified and has the potential to wreak havoc on society if it is misleading in any manner. This fake information can be mainly classified into two types  –  

• Misinformation and  

• Disinformation,  

While both of these types refer to information that is fake, the primary difference is enshrined in the motive behind the dissemination of the two. Misinformation is the publication of inaccurate or false information without the intent to deceive or mislead while the latter is a targeted effort to do serious harm or further individual motives which are more often than not, political in nature.  

A study by the Indian School of Business and CyberPeace Foundation found that 46% of fake news is politically driven, followed by general (33%) and religious (16%) content. Social media platforms like Twitter and Facebook are the main sources, responsible for 61% and 34% of such content, respectively. With nearly 75% of Indians relying on social media for news, and a strong preference for video content, vulnerable groups—especially youth, low-income individuals, and those with limited education—are most at risk, highlighting the urgent need for stronger regulation and public awareness to curb the impact of misinformation. 

STATUTORY PROVISIONS 

The current statutory provisions governing the framework for curbing misinformation are outlined hereinafter –  

1.Bharatiya Nyaya Sanhita (BNS), 2023: 

The BNS, 2023 addresses misinformation primarily through Sections 353 and 354. Section 353 penalizes the act of making, publishing, or circulating any statement, rumor, or report that is false or misleading and is likely to cause fear, alarm, or incite offences against the state or public tranquility. This includes content that could disturb public order, spread panic, or provoke communal disharmony.  

Section 354 goes further by criminalizing statements or materials that are intended to incite violence, hatred between groups, or affect national integration. These provisions make it a cognizable offence, punishable by imprisonment and/or fine, thus directly targeting the spread of misinformation with malicious intent. 

2. Information Technology Act, 2000 (IT Act) and Intermediary Guidelines and Digital Media Ethics Code Rules, 2021 (IGDME Code): 

The IT Act, 2000, particularly through Section 66D (cheating by personation using computer resources), Section 69A (power to block public access to any information in the interest of sovereignty, public order, etc.), and the IGDME Code, provides a regulatory framework to combat misinformation online. These provisions empower the government to direct intermediaries (like social media platforms) to remove or block fake or harmful content and place obligations on intermediaries to act against misinformation proactively. Further, Section 79 of IT Act, 2000 protects online platforms (intermediaries) like social media websites, search engines, and internet service providers from being held responsible for user-generated content, as long as they follow certain rules. 

The general understanding is that platforms like Facebook, YouTube, and Google are not responsible for the content uploaded by users. Provided that –  

• The platform only provides access to the internet or hosts content without modifying it. 

• It does not control or alter what users post. 

• It follows government guidelines and acts responsibly. 

This immunity is revoked if a platform facilitates illegal activity or fails to act promptly upon being notified of unlawful content. 

3.The Press Council Act, 1978: 

The Press Council Act, 1978 established the Press Council of India (PCI) as a quasi-judicial, self-regulatory body tasked with upholding standards in print journalism. While the Act does not provide punitive powers, Section 14 enables the PCI to warn, admonish, or censure newspapers, editors, or journalists for publishing unethical, misleading, or false content. PCI can also conduct inquiries under Section 15 to further discourage misinformation and sensationalism. Though it cannot impose fines or imprisonment, its decisions hold significant moral authority and impact public perception of the press. Notably, the Act’s jurisdiction is limited to print media, excluding electronic and digital platforms. 

4.The Cable Television Networks (Regulation) Act, 1995: 

This Act governs the operation of cable and satellite television in India and aims to prevent the broadcast of harmful, false, or misleading content. Under Section 5, all programmes must conform to the Programme Code detailed in Rule 6 of the Cable Television Networks Rules, 1994, which prohibit airing of content that is defamatory, false, obscene, or likely to incite communal disharmony or public panic. Section 20 empowers the Central Government to prohibit or regulate transmission of any such programme that violates the code, including banning entire channels if necessary, after giving a hearing. Non-compliance may result in the suspension or cancellation of the broadcaster’s license.  

5.Representation of the People Act, 1951: 

This is a central statute regulating the conduct of elections to the Parliament and State Legislatures and contains explicit provisions to deter the dissemination of misinformation during electoral processes. Under Section 123(4), publishing false statements about a candidate’s personal character or conduct, intended to damage their electoral prospects, is classified as a corrupt practice. Individuals found guilty of such practices may face disqualification under Section 8A. Furthermore, Section 125A penalizes the submission of false information in election affidavits, with punishment extending to six months’ imprisonment, a fine, or both, reinforcing accountability and integrity in electoral disclosures. 

6.Disaster Management Act, 2005: 

The Act was enacted to ensure effective response and preparedness for natural or man-made disasters and includes measures to combat misinformation that could hinder emergency efforts or cause public panic. Under Section 54, any individual who makes or spreads false alarms or warnings about a disaster—its occurrence, severity, or impact—resulting in public panic, faces criminal liability, including imprisonment up to one year, a fine, or both. The provision applies broadly across all forms of communication—verbal, written, or digital It was widely invoked during the COVID-19 pandemic to prosecute individuals disseminating false information regarding lockdowns protocols, public health measures, or the availability of medical facilities.  

IGDME CODE AMENDMENT –  

In our efforts to curb the spread of misinformation, it is crucial to ensure that genuine voices are not silenced by an over accumulation of power in the government’s domain. Freedom of speech is undeniably a core fundamental right and cannot be limited or curtailed by legislations or judicial decisions. However, the boundary between regulation and suppression has become increasingly blurred and has, in some cases, been crossed in recent times. 

The 2023 amendment to the Information Technology Rules introduced the Fact Check Unit (FCU), giving the government power to flag online content related to its affairs as fake or misleading. This move was criticized for violating natural justice by allowing the government to be the judge in its own cause. Concerns arose that intermediaries would be compelled to act on potentially biased fact-checks, curbing free speech and access to information online. 

As a result, the amendment faced legal challenges from various parties, including comedian Kunal Kamra and the Editors Guild of India, who argued that the FCU’s establishment could lead to censorship and suppression of dissenting voices. 

A split verdict by the Bombay High Court followed. Justice Neela Gokhale upheld the amendment, citing the urgent need to counter fake news. Justice Gokhale also held that amendment does not violate Article 14 merely because the FCU is composed of government officials. The alleged bias due to government appointments would not be enough to invalidate the FCU’s role, especially in the absence of any proven misconduct.  

On the other hand, Justice Gautam Patel found the FCU unconstitutional, emphasizing the dangers of a single authority arbitrarily deciding what is false. Highlighting the Latin phrase “Quis custodiet ipsos custodes?”, the Hon’ble Court questioning the need to fact check the fact-checker, i.e., the FCU. It was also noted that the FCU’s role overlaps with the existing PIB, which is already sufficient for issuing corrections and clarifications. Eventually, Justice Patel struck down the amendment on the ground that the sole preserve of the government or anyone else — cannot be to unilaterally identify what is fake, false or misleading.  

Shortly thereinafter to resolve the deadlock, the matter was referred to Justice A.S. Chandurkar by the Chief Justice of the Bombay High Court. On September 20, 2024, Justice Chandurkar concurred with Justice Patel, ruling the amendment unconstitutional. He highlighted concerns over vagueness, potential overreach, and the chilling effect on free speech, emphasising that the government could not unilaterally determine the veracity of content related to its affairs. The final ruling, delivered shortly after by Justices Gokhale and Gadkari, confirmed the amendment’s unconstitutionality, reinforcing that the government cannot unilaterally determine the truth of content related to itself. 

CONCLUSION – 

This case serves as an interesting juxtaposition highlighting the complex and delicate interplay between curbing misinformation and upholding the right of free speech. While the dissenting opinion was correct in pointing out the need for FCUs, it failed to appreciate that conferment of a unilateral right of constitution of the same to the government may further political bias which was aptly corrected in the concluding judgement. 

While there does exist a robust legal system for countering misinformation, the system is far from perfect as highlighted by the media coverage of the recent Operation Sindoor. India’s mainstream news houses failed to uphold basic journalistic integrity during a sensitive time for the country highlighting the critical gaps in our media infrastructure. While enhanced government scrutiny may not be the right solution, institutionally autonomous fact checking units might be a more democratic alternative.  Such units, being free from political or corporate influence and operating with a clearly defined statutory mandate can strengthen public trust, support responsible journalism, and serve as a critical buffer against the erosion of truth in the information ecosystem curing both evils governmental overreach as well as the spread of fake information.