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The post, the Winning Entry of the 3rd RFMLR Freshers' Article Writing Competition, 2022, is authored by Piyush Singla, first-year student of B.A. LL.B (Hons.) at the Rajiv Gandhi National University of Law, Punjab.
INTRODUCTION
Looking at the contemporary world in the 21st century, we realize that digital media has completely changed the nature and practice of the freedom of speech and the dissemination of information. Digital media platforms such as Facebook, Twitter, and WhatsApp provide heads with freedom of expression so the public can express themselves. However, these benefits come with a downside as these platforms raise a new challenge of misinformation which impacts individuals' lives mentally and physically. The tension between the freedom of expression and the risks of misinterpretations of information is one of the biggest challenges in contemporary society even while being regulated.
The article aims to analyse how the Indian state regulates social media to define the freedom of speech and expression against the state’s essential duty to prevent people from sharing fake news. The author has tried to focus on how both the government and judicial system have attempted to tackle these problems.
INDIA’S DIGITAL MEDIA LANDSCAPE
India is said to have probably the largest connected population; according to the latest estimates made in 2023, over 700 million residents in India use the internet. The internet is becoming increasingly used in India, which leads to the battle between the right to speech and regulations. The digital explosion gives millions of people a voice in the public sphere by democratizing access to information.
However, this rapid expansion has also given rise to some serious issues. With the advent of digital media platforms, cases of misinformation, fake news, and hate speech are flooding the internet. This spread of misinformation sometimes also endangers people's lives, which especially happened during the COVID-19 pandemic. With the ability to reach a huge audience in a click, false information can spread rapidly and further intensify tensions, particularly in a diverse nation such as India.
The Indian government, realizing the abovementioned issues, has taken numerous steps to create legal practices to maintain a balance between the right to free speech and the regulation of misinformation. However, despite all efforts of the government, the battle continues to spiral out of control.
THE REGULATORY TIGHTROPE: IT ACT, 2000 AND THE IT RULES,2021
The issues of fake news and balanced freedom of speech along with the dissemination of misinformation make it crucial for India to define its regulations. This section provides a brief overview of various regulatory frameworks existing in India and explains how these regulations try to strike a balance between free speech and misinformation regulation and what pitfalls become hindrances to maintaining this balance.
· Information Technology Act (IT Act),2000:- The IT Act,2000, after amendments in 2008, is the foundation of digital media legislation in India. The primary purpose of this Act's enactment was to give electronic commerce legal legitimacy and to make electronic document filing easier. Section 69A of the IT Act, under which the government could pass orders for interception, monitoring, or decryption of the information and also to extract materials on computer resources that are in some way obscene or deemed a threat to national security or public order, regarding the circulation of only helpful, true material. This provision sought to rein in the spread of fake news and curb online threats, but it also has the adverse effect of raising the issue of state overreach, which can go a long way in curtailing freedom of speech. Resultantly this provision was struck down by way of legal intervention in the case of Shreya Singhal vs Union of India, 2015.
· Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021( IT Rules):- The IT Rules,2021 introduced regulations for OTT platforms, digital news outlets, and social media intermediaries, which constitutes the change in the modality of regulation on digital fronts. The want for flagged content inclusion within stipulated time frames demonstrates that the government is prepared to fight misinformation. But this also puts an equally significant amount of pressure on intermediaries which may cause them to over-censor content out of concern of violating rules. This initiative interferes with the freedom of speech, which is enjoyed by each digital platform, and thus creates a disequilibrium between the right to speech and regulation.
REGULATIONS: A TOOL TO COMBAT MISINFORMATION
The government's attempt to make regulations is majorly driven by the increasing role of social media. The spread of fake news during elections, and misinformation about vaccines during the COVID-19 crisis highlights the need to address these issues. The recent step by the government to reduce the dissemination of misinformation is the introduction of a Fast-Check Unit (FCU). The main aim of FCU is to put pressure on creators and spreaders of fake news and misleading information. Additionally, FCU also addresses the problem of false information about the Indian government and its departments. However, the system is highly criticized because, under this, the government has excessive powers in the regulation of content because of the broad and ambiguous terms like “False” and “Fake” which give discretionary powers to authorities and lead to encroachment on rights to freedom of speech. In The ruling judgment of September 20, 2024, Bombay High Court Justice A.S. Chandurkar ruled the Fact Check Unit (FCU) as unconstitutional. The court argued that this is an encroachment on the “Right to freedom of speech and expression” ( Article 19). The court also agreed that the procedure established in this system for censorship lacks procedural safeguards which is again a threat to transparency and credibility of rights.
FREE SPEECH v. REGULATION: THE KUNAL KAMRA CASE
Free speech versus regulation has always been more of an issue in modern society. There is an ongoing tussle between the measures to control and speech rights. Freedom of expression and the rapid spread of information coexist with the dangers of misinformation, hate speech, and false narratives. The case of Kunal Kamra v. Union of India highlights this debate. In the Kunal Kamra case, the Indian Court addressed pressing concerns about balancing free speech and regulation in digital media. This case scrutinized amendments that granted extensive authority to the Central Government, particularly regarding the creation of a Fact-Checking Unit (FCU) responsible for vetting information concerning government matters. The Court underscored that any restriction on free speech must align with Article 19(2) of the Indian Constitution, allowing only specific, reasonable limitations.
Rulings like Minerva Mills v. Union of India, & Shreya Singhal v. Union of India also reinforce the importance of a transparent and unbiased regulatory framework, cautioning against allowing any governmental entity to unilaterally decide the bounds of truth in public discourse. The Kunal Kamra case therefore marks a significant moment in India’s evolving digital landscape, pressing for regulatory structures that protect both free speech and governmental integrity through clear, impartial standards.
STRIKING THE BALANCE: FREEDOM V. REGULATION
The debate between Free speech and regulation has become widespread. The spread of misinformation adversely impacts the lives of individuals and the growing concerns highlight the need to curb fake news. However, as analysed above, the government is not successful in this. To overcome these apprehensions, there is a need for a government’s active role. The government should make clear & precise legislation by providing unambiguous definitions of terms like misinformation, fake, disinformation, and other critical terms that reduce the arbitrariness of government like the Vietnamese government did in its “Cybersecurity Laws.”. The Vietnamese law provides for a comprehensive definition of disinformation involving what actions can be covered under the ambit of disinformation, which can be adapted as a model for India to create legislation. Some more recommendations that can strike the balance between free speech and regulations are
· AI-Assisted Moderation Panels: In India, the law is often biased and influenced by the subjectivity of authorities, which can result in excessive overreach by the government. The government should establish an AI-powered panel of technologists and legal experts to counter these. Through the use of AI-assisted content review, technologists could reduce subjectiveness and bias in the system and legal experts could ensure that the decisions are impartial and clear. This could help in mitigating arbitrary government-imposed censorship.
· Clear Guidelines to Authorities: The current guidelines lack transparency and clarity often resulting in no control over governments’s actions. To mitigate this overreach, the government should collaborate with tech experts, platform representatives, and citizen’s welfare boards to devise new and stringent regulations aiming to combat misinformation. Additionally, there should be a system of dual- review that incorporates the principle of check and balance. This approach will ensure that the diverse opinion of the population is addressed.
CONCLUSION
Finally, it can be stated that India’s digital environment has a variety of obstacles in regulating freedom of speech against the necessity to minimize disinformation. The increased use of social media introduced new threats connected with fake news and hate speech, which means that the regulation of such content needs to be approached very cautiously.
Laws like the Information Technology Act, and the IT Rules have been formed to cover these problematic areas, but such regulations should not encroach on the right to freedom of speech and expression. While the government continues to come up with measures to counter fake news like the Fast-Check Unit but government must do so without compromising on impartiality and without losing the confidence that citizens have in the government. Therefore, addressing these complex digital issues requires comprehensive cooperation between government, non-government entities, and individuals.
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