The question of regulating online news — as the Ministry of Information and Broadcasting, under Smriti Irani has formed a committee to do — isn’t just a regulatory question; it’s an existential one. “When we ask what is news, do we mean in terms of regulation, or do we mean in terms of life,” asked Abhinandan Sekhri of Newslaundry. Since the beginning of the internet, the barriers between information and its consumers have slowly withered away as traditional news organisations and their editors have lost their gatekeeping monopoly. Anyone can start a blog and subvert business models of news publishing giants considerably larger than they are.

While this huge shift has been hugely democratizing all over the world, it has also given an unprecedented platform to fake news, disinformation, and hate speech. Since the conversation on fake news only started in the aftermath of the 2016 US election, this is a very young debate, with no solid legislative or regulatory consequences in the US or in most developed countries. In April, Malaysia’s government passed a law criminalizing fake news, and the downside to that has been that two opposition leaders have already been targeted by it in less than two months.

So the question arises: should we regulate online news content at all, and if so, how?

This discussion was held at the India Habitat Centre in Delhi, with support from STAR India, Amazon and Google.

What is journalism and news?

It’s a simple question, but approaching it with regulatory intent throws up more questions than it does answers.

Durga Raghunath, the CEO of the Indian Express group’s digital wing, attempted a framework: “I think for me, journalism would mean some kind of process, and that process definitely includes people with certain kinds of specialized skills, and that processes, and — at least in the past — a certain defined period of time to carry out that process. I think that process has definitely gone through different versions, as we live-blog, as we tweet, as we do a lot of threads, our storytelling has changed. But reporters and editors have additional responsibility now than they had in the past, and the wicketkeepers have given way. […] But when you don’t have process, mistakes are going to be greater, and the velocity of distribution and consumption is fast, because mobile, internet and television journalism has become phenomenally different from what they were three years ago.”

Durga Raghunath, Abhinandan Sekhri, and Siddharth Varadarajan

Abhinandan Sekhri, a co-founder of Newslaundry, recounted: “I’ve been a reporter before any of the big news channels came about. Newstrack used to be a video cassette show we’d just tape, and Aaj Tak, which was interested in airing it, had a bulletin. When I was 21, Newstrack used to have stories of about eight minutes to 25 minutes per story. When Aaj Tak came around, they said you have to do thirty to 90 second stories. We’d put a byte in the middle quoting somebody and surround it with our anchoring, and that was it, we had a story. But that byte itself was news, without any of us introducing it and signing off at the end. If that byte by itself is news, there is no process anymore. The scale of the problem is mind-numbing.”

Self-regulation and media ownership

Sekhri of Newslaundry said, of creating an association of digital news organizations: “I think they should make an association and have a voice. But the while it will deal with some content regulatory aspects, it should mainly look at structuring laws around businesses, how you structure companies. That doesn’t impact individual bloggers or people who are just on the internet. I think that is a far bigger debate and a wider debate and impacts millions of people whereas a body of Quint, Newslaundry etc would be speaking for limited interests. While it could have a larger scope, that would be the ideal purpose.”

He pointed out how media ownership law itself had discouraged diversity of news in India: “In the UK, the rule is that you can’t own more than 20% of the newspaper market, which of course relies on accurate circulation numbers. Meanwhile in India, if you have FDI, the rule is that one Indian player must own 51% of the company. Therefore it becomes much more fragmented. This is applicable for digital publications too. Depending on who you ask, though, digital news sites are classified as either broadcast or non-broadcast.”

Siddharth Varadarajan, a former editor of The Hindu and founding editor of The Wire, pointed out how the latter organization has an ombudsman who is not an employee. He also pointed to Ofcom, a consolidated broadcasting regulator that also looks at the internet in the UK.

Does the platform matter?

Varadarajan said, “As a first principle, in my view, the boundaries between digital, newspapers, channels, and blogs have increasingly gotten erased. If at all we have to think of any kind of discussion on content, it would seem logical that there shouldn’t be discrimination between different platforms. If law says a cartoon is seditious, it shouldn’t matter if it is printed on TOI or broadcast or on someone’s Facebook wall. You should have the same yardstick for everybody.”

Amba Kak, a Mozilla tech policy fellow, said it may be hard to transport regulations from traditional media to digital media: “We already have a lot of laws on hate speech that already regulate content and are medium agnostic, whether online or offline. If I take the example of paid news, it’s an interesting example. We have a set of guidelines from the Election Commission, and they’ve consulted with the Press Council of India on paid news — the issue that there’s editorial content but there isn’t a disclosure that it is paid for. And many are now saying that this whole problem with political advertising is exactly the same. Again, you don’t have enough disclosure. It’s the same problem. If we dig deeper and look at the rules, we find that it’s not easy to transport rules that were made for a different medium onto the Internet.”

Amba Kak

Why regulate…

Kak from Mozilla pointed out how important setting terms of reference before debating content regulation were: “We’ve started this discussion with the assumption that online content regulation is necessary, but we’re not talking about for what reason. To just step back, are we talking about general or specific issues? Are we worried about fake news or hate speech, or misogyny? A prior question is ‘why regulate?’. After 9/11 there were a lot of liberty-eroding surveillance laws because there was this environment that something had to be done after the horiffic terrorist attack. Similarly in the last few years, with Russian interference in US elections, and worry about fake news and platforms, there’s a similar call that’s gone out that something needs to be done. What I think we should urge regulators in these conversation to ask is, what is the specific harm we’re talking about?

When it comes to fake news, when truth vs fiction is being co-opted by all kind of parties, we might have a more principled objection to having anyone be the arbiter of truth. That comes with a lot of cost to society, and it means that there is a lot of garbage online that we have to deal with. But before we go to the pragmatic argument of how would we even enforce it, there should be a clear position on whether we think it is a reasonable restriction on free speech, and you don’t have to be a free speech absolutist to say that perhaps regulating a nebulous concept like fake news would definitely fall foul of the constitution.”

On one possible reform in online content that Kak recommended was political ad transparency. “Not just ads by political parties, but in issue ads, it’s important that if something is paid for, it needs to be disclosed. Transparency has minimal free speech harms.”

…when we’re already regulated?

Varadarajan of the Wire pointed out that there were already a host of regulations that applied to online content: “My issue with the proposal of the [Narendra] Modi government to have some kind of online content regulatory mechanism is that it began with a half-truth, or an untruth. And that half-truth was that print and television are both regulated — which they are not — and that online is unregulated, which is also not true. So the fact is that we — Newslaundry, Wire, even the digital edition of the Indian Express — all of us are bound by the IT Act, which if you go back to the bad old days of Section 66-A, was a pretty horrible law.

“I remember as editor of the Hindu at that time, being acutely aware that TheHindu.com was subject to the IT Act and to 66A, and the irony was that a cartoon or a statement that we would carry in the newspaper would be perfectly legal, but if it was put out on a website, it had the potential of being criminalized. They took 66A out later, but you still have 67A, which prescribes the transmission of obscene or ‘lascivious material’. And the way in which police around the country enforce these kinds of rules [is worrying]. The other day we saw in Chhattisgarh a reporter who shared a cartoon critical of the judiciary, the PM and Amit Shah in the context of the Loya case — I would say it’s a distasteful cartoon, it wasn’t a good cartoon by any measure. But the Chhattisgarh police filed a case of sedition against the guy. Which is outrageous because you have 60 yeears of jurisprudence from SC which says that sedition only kicks in if there’s violence or threat of violence.

“I think this is where we are today — digital is actually excessively regulated. I’m not saying that we want all of this to go away overnight, but we are overly regulated. Apart from the IT Act, you have the usual gamut of criminal defamation, 295A, 195A, plus sedition which is misused or abused. Yes, there should be self-regulation, and to the extent to which we are not, what’s wrong with having rules, but there are already rules. But I don’t know what new rules the government wants to come up with.”

Sekhri pointed out that the government already has the power under Section 69A of the IT Act to block websites without any power of appeal, in an intransparent manner. “It doesn’t matter which  party is in power, there isn’t enough latitude for free speech in India.”

Is it possible to regulate fake news?

“I think it’s very hard to,” says Durga Raghunath. “It’s impractical to think that one can regulate fake news, because individuals make up or create realities for different reasons, and when they create those realities, they want to believe in those realities and people like them want to believe in those realities, and they want that to be the vision for themselves. There’s a lot of sociological and political and sociological reasons why that happens. Political fake news spreads the fastest because you create realities in politics much more than you do in other things.”

Sekhri said, “Definitions are still evolving. There are some real life examples of laws and behaviour that we can replicate and say, the same thing works online. But there are new problems that online throws up that are unique to online life, and this virtual life is going to throw up new virtual problems, and those have to be solved as time goes by. For example, ‘fake news’ is doing the rounds but it’s not a new creation. If you reported incorrect facts, that was fake news, but earlier we called it reporting incorrect facts. In this debate, we don’t have to reinvent stuff because there are new names for old things.”

Another dimension of fake news is non-news misinformation. An attendee raised the issue of medical misinformation: “There’s a lot of content out there; many of us suffer from many diseases, and the web is an immediate source of information about any condition we have. What happens there is that there are a lot of snake oil salesmen. Even on Twitter, there’s a famous nutritionist who said that mangoes are fine for diabetics. And as a diabetic, I know that may not be true. So what happens there? What sort of punishment should be given to bad, medical information which could potentially be fatal? Do we regulate this or do we punish, or take the content down?”

Who will have the power?

“Especially in a context like India, to give the government the kind of power it wants in constitutional committee, eight of whose members are bureaucrats, I don’t even know what they’ll come up with,” Abhinandan Sekhri said.

Renuka Sane, an associate professor at NIPFP, said, “Why are we precluding the growth of a certification industry that we can rely on to tell us what information is factual or not? There can be different agencies and you can pick and choose which agency to rely on. This evolves over time and reputation, and that’s the best antidote you have.”

Rajan Mathews from the COAI said, “When we as a telecom operator stand in the shoes of the sovereign in terms of having to exercise certain responsibilities on behalf of the sovereign, we can’t arbitrarily make rules on what we have to shut down. We need to have a regulatory framework in place so that we are protected against liabilities from anybody who thinks we violated their rights. The question of do we need regulation is a non-sequitur — of course we do. The question is what is the nature and extent of the regulation.”

Rajan Mathews, COAI

The central questions of content regulation by the Indian government boil down to this: Will the government be able to regulate online content at the scale at which it is created and disseminated today? Will they be able to use such regulations to tackle their own adversaries — be it opposition politicians or unfriendly media organizations? Will the end result of the government’s involvement in online content regulation be healthy for democracy? These may very well be the questions that will determine the contours of online news regulation in India — or limit their scope.

Quotes have been lightly edited for clarity.