Access to Public Information, Defamation / Reputation
Aécio Neves da Cunha v. Twitter Brasil
In Progress Mixed Outcome
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The Supreme Court of India directed the Government within 24 hours to issue daily bulletins clarifying the latest developments on the COVID-19 pandemic and urged the media to refer to and publish the official version of events. The order was in response to a petition concerning the public health and safety implications of a mass migration of labourers on foot back to their home villages from urban centres, as a result of the nation-wide lockdown to mitigate the spread of coronavirus as well as the shutdown of public transport. The Government claimed that the migration was the result of panic triggered by fake news, and hence the Government sought a direction from the Court that no print/electronic media, web portal or social media would publish any news about the pandemic without first “ascertaining its factual position” from the Central Government. After considering a status report by the Government, the Court did not order the direction requested, and further clarified that it did not intend to curb free discussion regarding the coronavirus. Rather, the Court stated it expected the media would act responsibly and not publish unverified news capable of spreading panic and requested that the media disseminate the information from the Government’s daily bulletins.
The petitioners were advocates practicing in the Supreme Court, concerned with news regarding the large-scale migration of labourers and their families, who were walking from urban centres back to their home villages in response to the announcement regarding the nation-wide lockdown to check the spread of coronavirus. The petition sought relief measures, including Government shelters and food security, for the migrant labourers. The widespread migration was not only threatening the health and safety of the migrants but was significantly undermining the efforts of the government to prevent the spread of the virus.
The Court issued notice to the Union Government on 30th March 2020 and directed the Solicitor General to produce a status report of measures taken by the Central Government.
On 31st March, 2020, the Court considered the stand taken by the Central Government. The Central Government produced a status report which highlighted several measures taken to curb the spread of the coronavirus as well as measures related to the health infrastructure. However, the status report made reference to fake news which was spreading panic. It claimed “deliberate or inadvertent fake news” to be “a single most unmanageable hindrance in the management of this challenge.” [p. 6] The report also made reference to the advisory issued by the Central Government dt. 24.03.2020 which urged intermediaries to promote the dissemination of accurate information and prevent the spread of fake news.
Significantly, the status report also sought a direction from the Court that no print/electronic media, web portal or social media shall publish any news without prior ascertainment of the factual position from the Central Government.
The main issue before the Court was to ensure the basic needs of the migrant laborers were met while maintaining public safety and to consider the Government’s request for a direction “to prevent fake or inaccurate reporting whether intended or not, either by electronic print or social media which will cause panic in the society.” [p. 5]
The Court considered the status report and the measures taken by the Central Government to determine that adequate steps had been taken to curb the spread of the virus and care for the migrant labourers. In relation to the issue regarding fake news, it accepted the stand of the Government that the migration crisis was as a result of panic “triggered” by “fake news that the lockdown would continue for more than three months.” [p. 6] The Court quoted the Director General of the World Health organization who stated that “We are not just fighting an epidemic; we are fighting an infodemic. Fake news spreads more easily than this virus, and is just as dangerous.” [p.6.] In light of the “untold suffering” of the migrant labourers and the loss of lives in response to the pandemic, the Court found it could not “overlook this menace of fake news.” [p. 7]
The Court made note of Section 54 of the Disaster Management Act, under which dissemination of false information with a view to spread panic was penalized. The Court further stressed that advisories issued by the Government constituted ‘orders’ under Section 188 of the Indian Penal Code, and hence compliance by all relevant parties was expected in the interest of Public Safety. The Court reiterated that it trusted that sections of the media would act responsibly and not publish unverified news capable of spreading panic.
In this vein, the Court directed the Central Government within 24 hours to begin issuing a daily bulletin regarding the latest developments and widely disseminate them, including through social media and forums. The Court clarified that it had no intention to curb free press or debate regarding the coronavirus, but it urged the media to refer to and publish information from the official bulletins.
The Court, therefore, did not pass the direction sought for by the Central Government.
However, the constitutionality of these provisions was not under challenge, nor did the Court consider the need to delineate the scope of these provisions or the manner in which ‘false information’ will be determined.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court directed the Government to provide daily bulletins regarding the official version of events and urged media professionals to refer to and publish these developments, which may enhance access to information. It also clarified that it did not intend to curb free press and discussion regarding the coronavirus.
However, the Court plainly accepted the Government’s stand that the large-scale migration was due to fake news and accordingly, didn’t adequately consider the proportionality of the Government’s measures. It merely reiterated the Government’s advisory regarding fake news, finding it to be in the nature of an ‘order’, disobedience of which has penal consequences under Section 188 of the Indian Penal Code, as well as the provision prohibition dissemination of false information capable of causing panic under the Disaster Management Act. The terms ‘false information’ and ‘panic’ are vague and the Court failed to adequately clarify the scope of these provisions. In the absence of such clarification, the provisions as well as the order to refer to the government measures, read collectively, are prone to misuse and any publication that refutes the Government’s version of events may be construed as false information capable of spreading panic.
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Case significance refers to how influential the case is and how its significance changes over time.
The decision is an order of the Supreme Court and therefore, binding on all Courts within the jurisdiction of India and future Benches, unless overruled by a larger Bench.
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