by Tejas Bharadwaj
Neo-Journalism encompassing inter alia fringe medium such as Individual Online Bloggers have profoundly thrived on strong Regional and International Legal Standards to offer them protection from arbitrary restraints on free speech. Thus in pursuit of an authoritative Nostrum towards countering fake news online and incongruently fostering a postulation of realist impartation by individuals for the popular benefits, this research is sculpted within the framework of the International Law. As aforementioned it is imperative to deplore the publication of fake news online through a strong deterrent mechanism. States, by promulgating Legislations to counter fake news, are often left contemplated by the International Human Rights framework’s tripartite test that examines every Legislative restriction on free speech. The test of i) Legality ii) Legitimate aim and iii) Necessity, challenges the State in establishing the reasonability of the restriction imposed on any claim of free speech violation at international or regional human rights courts. While it is appreciable for States to restrict any expression pursuant to protection of public order, national security and even the rights and reputations of others, it becomes incompatible when states apply fake news as a blanket term to penalize other legitimate forms of expression such as criticisms on public officials, satires and value judgments, which stifles the foreseeability of the online bloggers to possibly understand those forms of expressions that are punishable. With grey clouds looming over the application of fake news laws creating a chilling effect on bloggers, states have also gone extra-legal by looking up to the social media platforms for a catharsis.
YouTube, Twitter, Google and emphatically Facebook have been mongers of fake news notably in instances such as the 2016 US Presidential Election and Brexit Referendum. Statisticians believe that Facebook in particular has facilitated rapid spread of fake news owing to its global usage, patronage and algorithms easing distribution of information. Facebook’s news feed during the election campaign promoted stories like “Pope Francis had endorsed Donald Trump’s Presidential Candidacy”, “FBI agent suspected in Hilary email leaks found dead in apparent murder suicide” which are indicative of strong partisanship and pro-Trump allegiances, with critics adducing these as influential factors of the Presidential election results. Facing heat, Zuckerberg resorted to denying Facebook as a media company and claimed it as a Tech company. Further, its Chief Operating Officer substantiated by saying “At our heart we’re a tech company; we hire engineers. We don’t hire reporters, no one’s a journalist, and we don’t cover the news”.Arguendo, ignoring the tech company debate, online intermediaries such as Facebook ascribe as “mere conduit” and are protected from liability arising from third party content posted when they have not selected the receiver of the transmission, modified the information or expeditiously removed the content knowing its illegality or after notice by government, as per United Nations & Organization for Security and Cooperation in EuropeCouncil of Europe and Court Decisions. Moreover, such platforms aren’t obliged to monitor posts in their platform. Consequently, the original authors of such posts are spotlighted. Under the dynamic technological proliferation that modern global media sustains, it becomes far-fetched to limitedly interpret journalism. This ushers to the issue: are bloggers journalists and are they afforded similar legal safeguards while posting fake news?
Decisively, bloggers are categorized as journalists, including citizen journalists who momentarily carry out such functions through social media. The ECtHR held social media as a vital source of political information and has provided impetus to citizen journalism that assists in constructing public discourse and disseminating information uncovered by traditional media.
Agonizingly, despite such importance, the social media bloggers are often left vacillating about the kinds of expressions that are illegal under international human rights law, especially when posting fake news.
The State is refrained from prohibiting discussions or dissemination of information received, even if it is strongly suspected that such information might not be truthful. Moreover limiting the dissemination to only true or state-sanctioned news poses a threat to democracy itself. It is also common for journalists to make factual errors as they do not have the time to wait until they are sure that every fact alleged is true before they publish a story. ECtHR held, “News is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all value and interest.”
Distortion of reality such as exaggeration and satirical elements employed by journalists are also the possible recourses available under the law, aimed to attract readers’ attentions, provoke them and increase the awareness on issues especially in the context of the public debate of affairs. This encompasses the use of the deceptive “Click baits” by online bloggers to attract readers.
Mindful of the safeguards meted, the bloggers also must possess acumen that freedom of expression is not absolute and the State is absolutely entitled to restrict those expressions that incite hate, racism and xenophobia; are obscene; agitate violence; compromise security and public order; and baselessly violate the rights and reputations of others.
Expressing the possibilities for algorithmic reforms by social media and state actor’s commitments to refrain from general prohibitions on the dissemination of information based on vague and blanket terms such as fake news, I would like to conclude by stating that “a world devoid of lies holds no truth”.
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