India needs specific anti-fake news laws to curb spread of misinformation

The government’s recent directive asking WhatsApp to curb the spread of misinformation through the instant messaging app has left legal experts divided on whether this diktat goes beyond the existing scope of law.

A section of experts contends that the government might be stretching its legal authority in asking a non-licensed app to be regulated according to existing laws. “The government’s move does not seem to have a strong basis in the existing legal framework,” notes cybersecurity lawyer Apar Gupta. “It may not stand the scrutiny of law if a company decides to challenge it in a court of law,” he adds.

Experts point out that since WhatsApp does not have servers in India and transfers data to the United States, it is not bound by Indian laws. Moreover, the instant messaging platform does not operate on any telecom or internet regulatory license which can be revoked if it fails to comply with the government’s directive. 

This view is, however, not shared by some experts. Cyberlaw expert Pavan Duggal notes that WhatsApp can be made liable for its actions in spreading fake news through the existing provisions of the Information Technology Act, 2000. 

Duggal points out that WhatsApp is an internet intermediary which is fully governed under the purview of India’s cyber laws. “Section 85 can be used to make WhatsApp accountable for the fake news problem and not doing its due diligence,” he says.

Section 85 of the Act holds heads of the organisations governed under the IT Act responsible for following the provisions of the Act or acting in the contravention of the Act. It provides the government with the power to start legal proceedings in court. 

Duggal says the government has enough firepower in terms of the law to go after WhatsApp-like services for any contravention of the Act. “It can charge the company for abetment to spread of misinformation on the internet,” he adds. 

However, Duggal concedes that the absence of a specific fake news law in India does hamper the country’s efforts to bring to book social media platforms and individuals spreading misinformation. 

Apar Gupta too is in favour of having a strong data protection law which could help Indian authorities force social media platforms to share their data with the government. 

WhatsApp has proven to be effective in curbing the spread of rumours and hoaxes online by fact-checking messages by its users in Brazil. The messaging platform runs 50 centres to check the veracity of messages which users find inauthentic. 

Experts see a similar solution to be a good enough start for India. This will not require WhatsApp to screen every message before it is sent or break its encryption.
 

“WhatsApp will need about 2,000-odd centres, considering India’s population and varied languages, but this is a solution which can work and provide some immediate relief,” feels Swaraj Barooah, Policy Director, Centre for Internet and Society. 

In a recent communication to the government, WhatsApp noted that in the Mexico election it worked with a fact-checking company that received thousands of messages from users and fact-checked those. 

Similarly in India, Boom Live is present to fact-check messages on WhatsApp, they added. But the problem of fake news is much bigger than just controlling one single app, say experts. 

Cyber experts point out even if WhatsApp is hypothetically banned, people will shift to other social media platform.

There are technical limitations to what the Indian government can do to curb the spread of fake news in the social media. In the aftermath of the Mumbai attacks in 2008, the government had asked BlackBerry Messenger to share its messages and threatened it with a ban under the Unlimited Access Service License, which is provided to internet providers. While the company tried to argue against the diktat, it had to eventually give in. The messenger shared its master private key with the authorities but even that’s not possible in the case of WhatsApp, say experts. The app follows Signal’s protocol for encryption which generates a separate key for each message and hence, there’s no master key to get in.

“Maybe we have to realise that lynchings are a law and order problem first, and also realise the limitations of existing law in order to rein in companies. We need legal backing before directing companies to follow orders,” noted another lawyer.

How the world tackles fake news

• Germany: Passed anti-fake news laws in January 2018
• Malaysia: Enacted Anti-Fake News Act in April this year
• China: Heavily censors the internet in order to combat fake news
• Singapore and the Philippines: In the process of coming out with laws to penalise those spreading misinformation

What WhatsApp does In India

• Boom Live present on WhatsApp to check forwarded messages reported by users
• Commissioned an academic study to understand the spread of fake news in the country 
• Testing a label for forwarded messages which shows that the content isn’t original

In other countries 

• Brazil: WhatsApp works with 24 news organisations to fact-check messages
• Mexico: WhatsApp partnered with Verificado to verify messages during the elections