A Bill for Big Brother to weaponise speech

One of the cardinal rules of free speech philosophy is that the law should be precisely worded, leaving little discretionary power with the executive.

Towards the end of June, it was reported that the government of Karnataka was planning to introduce a bill for the prohibition of “misinformation and fake news”. Shortly after that, the media accessed an unofficial version of the proposed Bill. This Bill is not, admittedly, the first attempt in India to prohibit “fake news”. Two years ago, the central government amended the Information Technology rules, seeking to proscribe news about the central government that was “fake, false, or misleading”. This attempt was eventually struck down as unconstitutional by the Bombay High Court. If this version of the Karnataka Bill is enacted, however, then it will go even beyond the unconstitutional IT Rules amendment, and cause a serious chilling effect on the freedom of speech.

The issue with this bill is that the line between “fact” and “opinion” is nowhere near as clear as the Bill would have us believe. This is especially true in contexts of political speech or public dissent, where the freedom of speech is particularly important. (PTI)

The problems begin from the definitions themselves. The Bill contemplates the establishment of a ‘Fake News on Social Media Regulatory Authority’, whose task, among other things, is to proscribe online content that is “anti-feminism”, disrespectful of “Sanatan symbols and beliefs”, promotes “superstition”, or is not based on “authentic research on subjects related to science, history, religion, philosophy, or literature”. As is obvious, these are very vague and subjective terms, which will result in the casting of a very broad net of censorship. One of the cardinal rules of free speech philosophy is that restrictive laws should be worded as precisely as language permits, and leave as little discretionary power as possible in the hands of executive agencies.

The Bill fails on that front. Furthermore, the section on misinformation proscribes misinformation that is “prejudicial to public health, public safety, public tranquillity or the conduct of free and fair elections”. This goes considerably beyond the mandate of Article 19(2) of the Constitution, which limits restrictions upon speech to those that are in the interests of “public order”.

There is, however, a deeper problem with the Bill. In its definitional section, it makes a valiant effort to distinguish between “fake news” and “misinformation” on the one hand, and matters of “opinion” on the other. The Bill goes to great lengths to do so, for example, by stipulating that “opinions, religious or philosophical sermons, satire, comedy or parody or any other form of artistic expression” will be excluded from the regulatory ambit, as long as a “reasonable person” would not think of them as “statements of fact”.

The issue, however, is that the line between “fact” and “opinion” is nowhere near as clear as the Bill would have us believe. This is especially true in contexts of political speech or public dissent – contexts where the freedom of speech is particularly important. Consider, for example, a situation where I call a particular politician a “thief”. While I may be using the word “thief” to refer to their ethical and moral character, or their failure to keep their political promises, the regulatory committee can easily take my statement as a factually untrue accusation that the politician has committed the crime of theft. This is not a problem that can be solved by precise legislative drafting; it is something embedded in the very manner in which we wield language, and relate to each other in the world.

While civil defamation law (and, in India, election law) is also premised on the fact/opinion distinction, there are safeguards there (such as the requirement of a trial and determination by a judge) which are absent in the Karnataka Bill. Here, the executive-driven regulatory authority is the body that initiates proceedings, which are, in turn, channelled through the police, and to special courts.

Furthermore, one of the most disturbing provisions of the Bill is Section 12, which is the bail provision. This provision adopts the notorious “twin test”, which is used in terrorism laws such as the Unlawful Activities Prevention Act (UAPA) or money-laundering laws such as the Prevention of Money Laundering Act, 2002 (PMLA). This provision reverses the presumption of “innocent until proven guilty”, and forces an accused to virtually establish their innocence even for the grant of bail. It is a well-known fact that because of this provision, people accused under UAPA and PMLA spend years in jail without trial. The Karnataka government now seeks to extend that draconian provision to what are pure speech offences (at the highest).

In short, therefore, the Karnataka Fake News and Misinformation Bill is vague and over-censorious in its content, vests vast amounts of discretion in an executive regulatory body, lacks procedural safeguards, and authorises draconian and disproportionate punishment. It violates the Constitution and the guarantee of free speech every step of the way.

While spreading of misinformation and fake news on the internet is no doubt a problem, which requires some degree of regulation, the Karnataka Bill wields an indiscriminate, coercive sledgehammer instead of a deft, regulatory scalpel. It should not see the light of day – and if it does, it should be swiftly struck down by the courts.

Gautam Bhatia, a Delhi-based advocate, is the author of Offend, Shock or Disturb: Free Speech Under the Indian Constitution. The views expressed are personal.