In February 2022, I wrote on the need to penalise online disinformation or “fake news” on Indian social media to protect the freedom of thought of Indian citizens. While the Indian government now seems resolute in tackling online disinformation, its approach raises concerns, as it appears to be in tension with the principles of free speech.

I argue that the tensions arise mainly due to the lack of a clear definition of disinformation. Consequently, the solution is not to bar the government from regulating disinformation altogether but to define it precisely.

Regulating Disinformation As Central To Ensuring Free Speech

While there is no universally accepted definition of online disinformation among academic literature, this article adopts the definition by Edda Humprecht. Humprecht (2018) defines online disinformation as “online publications of intentionally or knowingly false statements of facts that are produced to serve strategical purposes and are disseminated for social influence or profit.”

I argue that regulating such disinformation is essential to upholding the core values of free speech. My argument is grounded in Seana Shiffrin’s thinker based approach to free speech. As per this approach, insincere speech and deliberate falsehoods undermine the very purpose of free speech, which is to foster genuine understanding and enable thinkers to reflect, form opinions, and make informed decisions. Consequently, safeguarding against deception aligns with the fundamental objectives of free speech.

Indian free speech jurisprudence too affirms that free speech encompasses more than just communication; it includes the essential processes that ensure ideation, belief formation, thought generation, and perspective construction remain unhindered. Consequently, courts have recognised the right to accurate information, the right to be exposed to diverse perspectives, and the right to uninterrupted internet access as integral to this framework. Together, these elements protect the thinker and enable informed decision-making for Indian citizens.

In this context, the regulation of disinformation online is of utmost importance given that social media platforms and search engines rely heavily on algorithms to personalise content for users. This personalisation leads to the creation of echo chambers as individuals are exposed primarily to perspectives they already agree with. Disinformation spreads and gains credibility rapidly within such echo chambers, compromising mental and ultimately, decisional autonomy of individuals.

Indian Government’s Approach

While combating disinformation is essential, the approach must be carefully balanced to prevent authoritarian overreach. In this regard, the Indian government’s two recent measures to regulate disinformation raise significant concerns.

First are the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (‘IT Rules’), which require social media intermediaries to remove any content relating to the “business of the Central Government” that is deemed false or misleading by a government-established fact-checking unit. Indian comedian and political satirist Kunal Kamra challenged the Rules on the grounds that they restricted freedom of speech. On March 21, 2024, the Supreme Court of India stayed the establishment of the fact-checking unit, noting the Rules raised serious constitutional questions about their impact on freedom of speech. The case remains pending.

Second is the Broadcasting Services (Regulation) Bill, 2023, which proposes to categorise digital content creators producing news and news adjacent content online, including videos and commentary on social media, websites, newsletters, or podcasts, as “digital news broadcasters” and subject them to regulatory oversight. A draft of this bill (which was only privately circulated among a handful of industry stakeholders) was recently withdrawn by the Indian Ministry of Information and Broadcasting after facing intense criticism from stakeholders.

In both measures, the absence of a clear definition for what constitutes false or misleading information opened the door to arbitrary restrictions on speech, as this could encompass a wide spectrum—from satire and biased reporting to propaganda, sponsored content, fabricated stories, and even inconvenient truths. Such broad restrictions on disinformation could have a chilling effect on free speech.

To mitigate this, the “actual malice” standard, which stipulates that a statement cannot be prohibited unless it shows “actual malice or a reckless disregard for the truth,” must be applied in defining disinformation. By focusing on the intent, this approach will minimise arbitrary restrictions and prevent undue suppression of free speech.