“No item of news, or any expression of opinion, which conflicted with the needs of the moment, was ever allowed to remain on record. All history was a palimpsest, scraped clean and reinscribed exactly as often as was necessary”

– George Orwell, 1984

On April 3, the Ministry of Information and Broadcasting withdrew its order amending the guidelines for accreditation of journalists. The new rules proposed that the accreditation committee of the Press Information Bureau (PIB) would be vested with powers to cancel the accreditation of journalists permanently, if they are found to be publishing fake news.  However, the Press Council admitted yesterday that if the government does regulate fake news, it would not be wrong in doing so.

While fake news is a raging concern, regulating it in a manner that fetters media discourse is equally worrying. In a fair and just democracy, determining the truth in matters of public debate can undermine public interest. At the same time, there is an overwhelming need to balance this interest with the importance of protecting the image of the media as an institution that facilitates independent verification of facts.

The apprehension that regulating fake news may undermine the discourse today stems from the fact that, as of now, there seems to be no consensus as to what constitutes fake news. While it may seem fairly obvious, it is more nuanced than one would think.

For instance, a study referred to fake news as a wider term, ranging from reckless reporting to political propaganda to even misleading news that may be slanted or unfair, leaving the reader with a biased opinion. In a democracy, tolerance towards even demonstrably untrue and alarming statements is imperative. This serves the larger objective of precluding the suppression of alternative narratives or opinions.

Facebook, however, uses the phrase “false news” to imply an intention to mislead readers through false information, misinformation and hoaxes. Few describe “fake news” to be news articles that are intentionally and verifiably false, and could mislead readers.

The absence of clarity on what constitutes fake news can result in overbroad regulation, resulting in a form of chilling effect among journalists. Even news outlets that subscribe to high journalistic standards could end up making errors. If journalists are coerced into guaranteeing the truth in everything that they assert, it would grossly undermine their decision-making capacity, resulting in self-censorship in the media. Any potential critic would be fettered from voicing any criticism, even if she believes it to be true. In many cases, journalists would have doubts about whether they could prove their claims in court or fear the expense of having to do so.

It is imperative that any move towards regulating fake news must be preceded by some overlapping consensus amongst stakeholders as to what constitutes fake news in the first place. Public consultation with stakeholders from the media, think tanks and the general public in this respect seems like a step forward.

However, any attempt to regulate fake news would still face certain challenges. One of these would be separating facts, opinions and truth, especially because of the way in which news is presented. Anything conveyed even in a purely satirical form may be wrongly conceived as news that is false and resultantly be subjected to censure.

Another challenge would be to ensure that any fetter on fake news does not undermine the existence of alternate narratives. While views considered settled by the general public are often regarded as public facts, alternative views do exist in public discourse. These views are often vulnerable to being regarded as false facts.  

It must also keep in mind that the line between the news outlet’s voice and that of others is often blurred. Policymakers must accommodate statements made by third parties but reported by news outlets under conditions of anonymity or otherwise. Under situational and contextual constraints, it would not be conducive to subject such reportage to traditional methods of verification.

Lastly, any authority that is not entirely independent of governmental control should not play a role in determining the veracity of news. This is because it would seriously undermine independence of the media from the control of the state. Any attempt to regulate fake news should be wary of the consequences of allowing the state or judges to decide what constitutes truth.

In practice, however, the truth of the day is inextricably linked to the context at hand.  In the words of George Bernard Shaw, new opinions often appear first as jokes, then as blasphemies and treason, then as questions open to discussion, and finally as established truths.