Now that the good folks at the Prime Minister’s Office have decided that the government should not bother itself with thinking of ways to check fake news, journalists can heave a sigh of relief at a small but important victory.

The circular, after all, was grossly misdirected and could have had an adverse effect on real news that people dislike. The controversy around it may have died a quick death but some key questions remain. First, what is fake news and how do we define it? Second, do we need a law to penalise fake news? And, finally, if we do have a law, then who decides what’s fake and what’s real?

The first problem in the Indian and global context is that fake news is used rather loosely and has proved to have a flexible definition — remember US President Donald Trump giving out “fake news” awards to The New York Times, CNN and The Washington Post?

In India, only recently, 13 Union ministers, including Information and Broadcasting minister Smriti Irani, essentially dubbed two news reports in The Indian Express as fake when they were anything but. In all likelihood, the attempt here was to discredit a legacy newspaper and club it along with the likes of Postcard News — websites that are in the business of spreading misinformation and hoaxes intentionally.

Fake news versus genuine mistakes

Fake news was termed as the word of the year in 2017 and is defined as “false, often sensational, information disseminated under the guise of news reporting”. The key thing to note here is that fake news is designed to deceive. The intent is to mislead for political or financial gains. (This story in The Wired details how teenagers in Macedonia created fake news content to make some quick cash.)

So, fake news is deliberate. Back home, websites such as Postcard News push it out knowing very well that the information they put out is incorrect. This is different from genuine mistakes a news organisation may make — and there are plenty that happen on a daily basis.

Take, for example, The Hindu‘s story during the Mumbai stampede. The newspaper had put out a report claiming that a “dying woman” had been “molested” during the Elphinstone stampede. This later turned out to be a baseless assertion and the newspaper apologised. An editorial oversight such as this — grave as it might be — is not enough to dub The Hindu as a ‘fake news’ website. The spread of misinformation here is not deliberate and, more importantly, there a correction was issued. This is not to say that there is not a real problem of poor editorial gatekeeping afflicting many news organisations. (Newslaundry too fell for fake news last year.) But the important thing to note is that there is an intent to correct oneself.

Of course, it doesn’t help the case of media’s credibility when news organisations simply pull down incorrect stories or edit them without offering an explanation or apologising.

Fake news versus slant

Now, for the trickier question of distinguishing media bias from fake news. In any thriving media ecosystem, news outlets often cater to people of all persuasions and ideologies — Left, Right and middle-of-the-road. The best example in the Indian media scenario are television news anchors that take pronounced positions on prime-time TV — so you have a Mirror Now or an NDTV that will cater to the Left-Liberal crowd and a Republic TV that will cater to the Right, or better yet, Times Now — which is owned by the same group as Mirror Now.

While it’s natural for newspapers and TV channels to have an ideology so to speak, problems occur when the ideology crosses over from the opinion segments into reportage  — by omitting certain information and selecting some facts over others, among other ways. The source of these biases can also be varied — it can be owing to media ownership, funding patterns, business interests and so on. For example, back in 2015, a news report about a Domino’s pizza-delivery boy molesting a five-year-old girl made headlines on the city pages of prominent English dailies. Hindustan Times, however, chose to omit the fact that the pizza-delivery boy worked for Domino’s from its report because of its owner’s business interests. There are other severe cases like Times Now passing off a WhatsApp message as an exclusive investigation or India Today presenting an eight-year-old video from 2008 as a ‘special report’ in 2016.

This is a complicated territory and impacts media credibility but is in no way comparable to fake news. It is inevitable for individuals to have biases and for those biases to present us with half-truths instead of news — but in a healthy media industry, you’d have multiple biases cancelling each other out.

Do we need a law to ban fake news?

Now that we have distinguished fake news from media bias and editorial oversights, it is useful to question if we need a law to curb it.

Early this year, Germany enforced a tough hate speech law, NetzDG. This makes it incumbent on social media giants to delete “obviously illegal” posts within 24 hours or face fine of up to 50 million Euros.

According to a Vox piece, the draft law cited “the experience in the US election campaign” as one reason for a crackdown on “punishable false reports (‘fake news’)”.

The Vox piece notes that: “Germany is particularly sensitive (and not without good reason) about allowing the proliferation of things like Holocaust denial and racist or bigoted expression. That is to say, Germany does not allow such speech, which can be punishable by both fines and prison time. In the United States, the First Amendment protects the right to almost all speech — with essentially only direct incitements to violence, credible threats, libel, and slander left undefended (and very high bars to prove the last two in court).”

Not just Germany, even French President Emmanuel Macron vowed to introduce a law to ban fake news on the Internet. This was met with criticism from both the extreme Right and Left. The essential argument being that there were enough laws to tackle fake news and that you don’t want a law that will end up curtailing free speech.

In India, we have hate speech, and civil and criminal defamation laws that can deal with problems arising out of fake news — like communal violence, libel and so on. It is noteworthy that even Postcard News founder was arrested not for pedalling fake news but under Sections 120B, 153A and 295A of the Indian Penal Code. Section 120B deals with criminal conspiracy, and the others come under hate speech laws, which are problematic in themselves and are often used to quell free speech. Do we, then, need a separate law to look into lies spread through traditional or social media?

That question will need robust consultation and debate but what is certainly not desirable is to have the government decide on what’s fake and what’s real and use it to silence voices it dislikes. In the meantime, let’s hope a robust social media environment self-corrects and truth finds a funny way to come out even as we receive WhatsApp messages on how the Taj Mahal was originally a Shiv temple called Tejo Maha Aalya. The theory, by the way, was first propounded by writer PN Oak in 1989 in a book way before ‘fake news’ was a thing. His revisionist theories also asserted that Christianity was an old Vedic religion called Krishn-neeti and that the Vatican was originally called Vatika. Indian-born American academic Srinivas Aravamudan noted that Oak’s theories owed their origins to “deep punning” and I, for one, wouldn’t want a law to come in the way of such rich entertainment.

Also read: Six reasons why the #FakeNews guidelines need to be torn & trashed

Also read: PIB accreditation and what it’s worth