Author: Grahit Mudgal, Pardandi Devi College of Law
To the Point
The rise of Fake News and Misinformation has gathered more attention these days as information is the key in today’s life and if it misunderstood because of misinformation or fake news than it is more dangerous than any other thing. This rapid use of fake news and misinformation introduces new legal and ethical challenges particularly in the field of law to tackle them. This article takes all the legal and ethical challenges in the context of fake news and misinformation that develops in the society.
Abstract
This article examines the complexity of legal and ethical challenges posed by fake news and misinformation in modern information ecosystems. It focuses on the regulatory frameworks in India and comparative perspectives, balancing freedom of speech with the need to curb harmful misinformation, and explores ethical considerations for media, platforms, and lawmakers.
Use of legal jargon
Mens rea — the mental element of a crime or offence indicating intent or knowledge.
Actus reus — the external act or conduct that constitutes a criminal offence.
Strict liability — liability without the need to prove mens rea.
Adjudication — the judicial process of resolving disputes.
Overbreadth — legal doctrine invalidating laws that are too broad and stifle legitimate expression.
Police powers — the authority of the state to enact regulations to protect public health, safety, and welfare.
Introduction
The phenomena of fake news and misinformation have metastasized with the proliferation of digital media platforms, posing multifaceted challenges to legal systems worldwide. At its core, misinformation undermines public order, distorts democratic processes, and threatens individual rights. The task of regulating such phenomena involves complex doctrinal issues in statutory interpretation, administrative law, and constitutional law. In legal parlance, Mens rea — the mental state or intent is fundamental for distinguishing between innocuous misinformation and Actus reus that warrants penal liability. Contemporary statutes often lack clear articulation of whether the spreader must have acted knowingly or recklessly in disseminating false information, creating doctrinal lacunae that impair enforceability
India currently relies on a patchwork of provisions in the Information Technology Act and related rules, along with general criminal provisions in the Indian Penal Code (IPC) now BNS (e.g., defamation, public order offences) to address manifestations of misinformation. However, the absence of a specific statutory definition of “fake news” continues to hinder legal clarity and consistent enforcement.
Legal challenges
1. Freedom of Expression
In jurisdictions with robust free speech protections, any regulatory scheme must withstand strict scrutiny or equivalent judicial tests that guard against overbroad or vague legislation. For example, U.S. constitutional law limits content-based restrictions on speech absent a compelling state interest and narrow tailoring — a principle that complicates direct statutory prohibition of misinformation.
2. Balancing Regulation and Civil Liberties
The core legal dilemma is reconciling the state’s police powers to prevent harm with individuals’ fundamental rights. Overly expansive misinformation laws risk casting a chilling effect on legitimate discourse and press freedoms, contrary to international human rights jurisprudence that cautions against vague criminal prohibitions.
Ethical challenges
1. Ethical Constraints on State Power
Ethically, any regulatory paradigm must adhere to principles of proportionality, transparency, procedural fairness, and non-discrimination. A regime that lacks procedural safeguards, independent oversight, or clear definitions poses risks of arbitrary enforcement and erosion of democratic norms.
2. Global Regulatory Diversity
Comparative legal analysis reveals divergent approaches: some states prioritize platform accountability and user protection, while others emphasize free speech absolutism. This pluralism underscores the need for context-specific normative frameworks that account for societal values, jurisprudential traditions, and technological realities.
Case Laws
1.Tehseen S. Poonawalla v. Union of India (2018)
Court: Supreme Court of India
Legal Focus: Fake news that incites public violence.
Key Points
Supreme Court issued guidelines to curb fake news that leads to violence or mob lynching, including creation of nodal officers to monitor and act against misinformation with violent consequences. This case is often cited for legal responses to hate, rumour based violence amplified by misinformation.
2. Hamdard Dawakhana v. Union of India (1960)
Court: Supreme Court of India
Legal Focus: Misleading advertising.
Key Points
Upheld restrictions on misleading advertisements for drugs, holding such misinformation harmful and not protected speech. Applied to contemporary debates on online misinformation about products/health claims
Conclusion and Reforms
To address the challenges of misinformation, legal systems must embrace reforms that include:
Precision in statutory wording to minimize ambiguity and overbreadth.
Clear mens rea thresholds that distinguish malicious intent from benign errors.
Robust procedural safeguards to protect rights of speech and due process.
Collaborative multi-stakeholder governance models involving state actors, civil society, and platform intermediaries.
Such reforms should be anchored in a rights-based regulatory ethos that harmonizes public interests with individual liberties, ensuring that legal mechanisms are efficacious yet constitutionally sound.
FAQS
1. What is fake news?
Fake news is false or misleading information presented as real news. It is often created to trick people, influence opinions, or get more clicks and attention.
2. Why do people create fake news?
Few reasons include:
To make easy money
To influence political or social opinions
To cause fear or confusion
To gain attention or followers
3. Where does fake news usually appear?
Fake news often spreads on:
Social media platforms
Messaging apps, WhatsApp etc. messaging apps
Unreliable websites
Edited images, videos, or headlines shared online
4. Is misinformation the same as fake news?
Not exactly. Both have a little difference, that is,
Fake news is usually created intentionally to mislead.
Misinformation is false information shared by mistake.
Disinformation is false information shared on purpose.
