Fake news

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Introduction

“Fake news” — the deliberate creation or propagation of false or misleading information presented as news — has moved from being a media buzzword to a recurring subject of litigation, regulatory action and criminal complaints in India. For practitioners, the term has no single statutory definition, yet it interfaces with criminal law, civil remedies (defamation and injunctions), intermediary regulation under the Information Technology Act, and constitutional rights of free speech. Understanding how courts, police and intermediaries treat allegedly false/potentially harmful content is essential for advising clients effectively — whether the client is an individual, a news publisher, a digital platform, or the State.

Core Legal Framework

There is no standalone penal statute titled “fake news” in India. Legal responses are pieced together from multiple provisions:

  • Indian Penal Code, 1860
  • Section 505 (Statements conducing to public mischief): criminalises making, publishing or circulating any statement, rumour or report with intent to cause, or which is likely to cause, fear or alarm among the public or to incite them against any class or community.
  • Section 153A (Promoting enmity between classes): proscribes acts that promote enmity on religious, racial, regional or class lines.
  • Section 295A (Deliberate and malicious acts, intended to outrage religious feelings).
  • Sections 499/500 (Criminal defamation): punishment for defamatory publications.

  • Section 124A (Sedition) has been invoked in some cases involving false information affecting public order or the State — exercise caution (see jurisprudential limits below).

  • Information Technology Act, 2000

  • Section 79 (Intermediary liability): grants conditional safe harbour to intermediaries that observe due diligence and follow rules for removal of unlawful content.
  • Section 69A (Power to block public access to information): Central Government may direct intermediaries to block content in the interest of sovereignty, security, public order, etc., subject to procedural requirements.

  • Important historical note: Section 66A (criminalising offensive electronic communications) was struck down as unconstitutional in Shreya Singhal v. Union of India (2015) — a key check against over-broad suppression of online speech.

  • IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021

  • Obliges intermediaries to adopt grievance redressal mechanisms, respond to government blocking orders, and follow due diligence steps (acknowledgement timelines and takedown compliance periods).

  • Places additional compliance and due diligence obligations on significant social media intermediaries.

  • Civil and evidentiary law

  • Civil remedies for publication of false material: injunctions and damages under tort law and the Code of Civil Procedure (injunctive relief practice, Order XXXIX CPC).

  • Indian Evidence Act, 1872 — Section 65B and allied rules for admissibility of electronic records and certificates when relying on digital content (server logs, metadata, screenshots).

  • Self-regulatory and statutory press norms

  • Press Council of India, Press Council Act and Codes of Practice (for traditional media); the Digital Media Ethics Code (for digital news publishers) sets out norms and grievance redressal mechanisms.

Practical Application and Nuances

How the law is actually used — step-by-step and with practice pointers.

  1. Common legal routes when confronted with alleged fake news
  2. Criminal complaint / FIR: Frequently filed under IPC Sections 505, 153A, 295A, 499/500 depending on content. Pros: expedient police action; public law consequences. Cons: risk of misuse; variable police competence in handling digital evidence.
  3. Civil suit: Defamation actions (permanent injunctions, damages) and suits for injunction under civil procedure (ex parte restraint, blocking orders against intermediaries). Pros: direct control, predictable remedies. Cons: slower, monetary costs.
  4. Takedown/blocking via intermediary rules: Send intermediary notices (grievance mechanism) or seek government blocking under Section 69A — faster removal but procedural and political constraints.

  5. Regulatory complaints (Press Council / Digital Media Ethics Code) for news publishers; these bodies provide remedial routes short of litigation.

  6. Evidence and preservation — indispensable practical steps

  7. Immediate preservation: Obtain screenshots (with timestamps), URLs, copies of posts (raw HTML if possible), and note the platform and unique message IDs. Preserve the chain of transmission for WhatsApp/Facebook/Twitter posts: save forwarded count, message metadata, and group names.
  8. Application for preservation to intermediary: Use 2021 Rules — intermediaries expected to preserve content and identify originators only under judicial orders; use court orders or Section 91/94 CrPC notices if necessary.
  9. Electronic evidence compliance: For trial or civil suit, secure Section 65B certificates (or retain original server logs and obtain requisite certificates from the custodian) to ensure admissibility of electronic records.

  10. Intermediary affidavits: Where possible, obtain a voluntary affidavit or undertaking from the intermediary regarding the origin, metadata and access logs; if denied, seek judicial compulsion.

  11. Tactical approaches in police and criminal proceedings

  12. Framing the offence carefully: Tailor the FIR to specific sections with clear allegations of mens rea — 505 and 153A require intent or knowledge that the publication is likely to incite; plead the nexus between the alleged falsehood and public disorder. Avoid generic pleadings.
  13. Avoid relying on struck-down provisions: Do not attempt to invoke Section 66A (invalidated) — courts will reject such counts.
  14. Use intermediary cooperation early: Seek preservation and disclosure orders from courts under Section 91 CrPC or civil court powers; intermediaries will generally respond to court orders faster than to police requests.

  15. Consider police limitations: Many police stations lack digital forensics capacity. Where technical proof of manipulation or falsification is required, route the matter to cyber cell or specialized agencies.

  16. Civil litigation and injunctive relief

  17. Interim ex parte injunctions: Courts have granted interim takedown/blocking of content where prima facie falsehood and irreparable harm are shown. Typical relief: interim injunction against respondent and intermediary, order to preserve evidence and produce logs.
  18. Drafting the plaint: Provide a precise description of the offending content, exact URLs, screenshots, the harm (reputation, business loss, public safety), and specify the relief sought (injunction, disclosure of originator, damages).

  19. Balancing freedom of speech: Courts balance the right to free speech with reputation and public order. Be ready to show compelling evidence of falsity and imminent harm.

  20. Intermediary notice-and-takedown practice

  21. Use the intermediary’s grievance mechanism under IT Rules 2021: include precise URL, grounds for takedown and copies of evidence.
  22. Timeframes: Under the Rules, intermediaries must acknowledge complaints within 24 hours and take action within 72 hours where applicable — keep strict track and escalate to court or the grievance appellate if no response.

  23. Preservation letters / Section 91/92 applications: To force an intermediary to preserve/produce data, seek judicial directions early; voluntary preservation requests often fail without court compulsion.

  24. For WhatsApp-forwarded misinformation and viral chains

  25. Originator identification is difficult: WhatsApp resists sharing end-to-end content without orders. Courts have ordered intermediaries to preserve and produce metadata on the basis of judicial orders.

  26. Strategy: Combine criminal complaints with urgent civil preservation applications and requests under Evidence Act/CrPC for production of metadata.

  27. When the State is involved — blocking and prior restraint

  28. Government blocking orders under Section 69A must follow the blocking procedure rules; courts scrutinize proportionality in Anuradha Bhasin and related jurisprudence.
  29. Practitioners must be aware of political sensitivity and the potential of abuse; challenge arbitrary blocks by seeking procedural compliance and proportionality in court.

Landmark Judgments

  • Shreya Singhal v. Union of India (2015) 5 SCC 1

  • Key principle: Section 66A of the IT Act was struck down as unconstitutional because it was over-broad and vague, had a chilling effect on free speech and permitted arbitrary state action. Practical lesson: Courts are wary of vague provisions that curtail online speech; prosecution must be anchored to well-defined offences.

  • Subramanian Swamy v. Union of India (2016) (Supreme Court)

  • Key principle: The Court upheld the constitutional validity of criminal defamation under Sections 499/500 IPC while recognising the need to balance free speech and reputation. Practical lesson: Criminal defamation remains a live tool for clients seeking penal consequences for false, reputation-destroying publications — but the exceptions, especially truth for public good, must be navigated.

  • Anuradha Bhasin v. Union of India (2020)

  • Key principle: Affirmed that freedom of speech applies to the internet and that restrictions (including blocking of access) are subject to procedural safeguards and proportionality. Practical lesson: Government blocking of content is justiciable; practitioners can and should test the legality and proportionality of orders that remove access to alleged fake news.

Strategic Considerations for Practitioners

Practical, ethical and tactical advice you can use in court or in client counselling.

  1. Choose your remedy to fit the harm
  2. Reputation/business loss: Civil defamation and interim injunctions often deliver quicker control and damages.
  3. Public order/communal risk: Criminal complaints under IPC Sections 505/153A may be appropriate — but court supervision is crucial to avoid misuse.

  4. Platform-hosted viral content: Intermediary notices + preservation orders should be the first step.

  5. Evidence is everything — build the digital paper trail

  6. Always seek server logs, message IDs, originator metadata and 65B certificates. Without custodial certificates and preserved logs, technical rebuttals become difficult.

  7. Preserve via court order early — once content is removed, reconstructing provenance is hard.

  8. Draft with precision

  9. Describe exact words; avoid hyperbole. Courts expect a granular pleading showing falsity and the causal link to harm.

  10. When seeking arrest or criminal investigation, be cautious: overbroad FIRs invite quashing and reputational blowback.

  11. Use interlocutory relief creatively

  12. Seek preservation, interim injunctions and disclosure orders in parallel with criminal complaints. Many high courts have awarded ex parte takedowns where immediate harm is shown.

  13. Beware of constitutional counters

  14. Anticipate Article 19(1)(a) defences and proportionality arguments. If pursuing action for public-good truthful disclosure, be prepared to prove public interest.

  15. Avoid overreaching use of sedition or national security provisions for ordinary online falsehoods — courts increasingly scrutinise such invocations.

  16. Intermediary engagement and litigation calibration

  17. Use the intermediary grievance mechanism first, but be ready to file for judicial compulsion where intermediaries refuse to preserve/produce logs.

  18. When suing, name the intermediary as a necessary party if seeking takedown/identification.

  19. Avoid common pitfalls

  20. Do not base criminal allegations on emotions or political hue; courts will quash mala fide FIRs.
  21. Do not ignore private settlements where they achieve client objectives (apology, retraction, takedown) — litigation is expensive and reputationally double-edged.
  22. Be mindful of cross-border evidence issues where servers sit outside India — use Letters Rogatory or Mutual Legal Assistance where needed; intermediaries often have regional data centres and local representatives.

Checklists for Immediate Action (practical quick-reference)

  • For clients victimised by fake news:
  • Capture screenshots, URLs, timestamps and user handles; note where the post appeared (group, page).
  • Issue a takedown/grievance notice to the platform, keeping copies and tracking responses.
  • Draft and file a preservation application in an appropriate court (or Section 91/92 CrPC notice).
  • Consider a criminal complaint (IPC 505/153A/499) if public order or serious reputational harm is involved — but ensure clear pleadings of mens rea and causal link.
  • File for ex parte interim injunction in civil court if reputational damage or business harm is immediate.
  • Obtain Section 65B certificates or intermediary 65B-style affidavits for admissibility.

  • If the content targets a class / public safety, consult public law remedies and possible Section 69A routes.

  • For platforms defending against takedown/blocking:

  • Maintain robust internal logs and a documented due diligence policy complying with IT Rules, 2021.
  • Acknowledge and act on grievances within stipulated timeframes.
  • Preserve content on receipt of legal process and coordinate with lawful authority.
  • Seek judicial review promptly if government blocking orders lack procedural compliance.

Conclusion

Fake news in India is addressed not through a single statute but via a mosaic of criminal provisions (505, 153A, 295A, 499/500), intermediary regulation under the IT Act and the 2021 Rules, and civil remedies. Practitioners must think multi-dimensionally: combine urgent preservation and takedown steps with precise pleadings that establish falsity, intent/knowledge, and actual or imminent harm. Shreya Singhal reaffirmed that overbroad penal tools will not survive constitutional scrutiny, while Subramanian Swamy shows criminal defamation remains available. The practical work — preserving digital evidence, invoking intermediary obligations, crafting narrowly focused complaints or civil suits, and anticipating constitutional defences — determines success. In short: win the evidence, choose the right forum, and frame the legal issue narrowly so that remedies flow promptly without surrendering core speech freedoms.