FREE SPEECH OR FALSEHOOD: BOUNDRY BETWEEN LIBERTY AND LIABILITY

Authors- Sarbeswar Mishra & Taskin Akhtar

Abstract

The article discusses the increasing divide between two significant issues in the digital age: how we combat misinformation and the democratic guarantee of free speech. Misinformation presents significant challenges to public health, electoral integrity and social cohesion. However, overwhelming regulation could inadvertently curb free speechinto censorship. The blog explores how algorithm-driven social media platforms amplify sensational and misleading content for commercial gain, blurring the line between opinion, satire, and deliberate deception.Through examples of COVID-19 misinformation, deepfakes related to elections and the manipulation of data demonstrates the effects of unchecked digital falsehood. the blog first introduces the rise and impact of misinformation in contemporary society, then analyses the constitutional framework governing freedom of speech in both India and the United States. It further evaluates landmark judicial responses and the limitations of existing regulatory approaches. Finally, it proposes a balanced path forward to handle the misinformation surge. The central argument remains that the solution to misinformation cannot lie in absolute censorship, but in harmonising liberty, accountability, and informed public participation in the digital sphere.

INTRODUCTION

“The right to express gives no right to distort, the truth lies hidden in the trending lies,Once a gift of constitution, the same freedom becomes a face of injustice, misleading our eyes”

A paradigm shift to the realm of trends and threads from the traditional information and entertainment sources has seen a rise in the proliferation of misinformation in society. The new generation seeks ease and escape in the dynamic world. Indians are no exception to the trend shift; about 71% of Indians prefer the online medium[1] of news updates, and around 49% prefer social media platforms like Instagram, Facebook or WhatsApp.

The covid-19 pandemic saw people falling prey to misinformation. The National Library of Medicine[2] reported that the elderly, young users, those with less formal education and other individuals from vulnerable backgrounds, who actively engage on social media, are the most susceptible to such misinformation. The flip side of the coin portrays a different narrative. Disinformers often hide behind the guise of freedom of speech and expression. Misinformationis being presented as satire and parody, which are guarded by Hustler v. Falwell.[3]

The issue at hand is a legal and ethical conflict between neutralising and controlling misinformation and preserving the constitutional rights of speech and expression. While regulatory interventions are necessary to mitigate the issue of misinformation, adisproportionate framework to control it would raise questions on the fundamentals of democracy

DIGITAL DECEPTION: UNPACKING THE SPREAD AND THE CONSEQUENCES

Misinformation[4] refers to incorrect or misleading information; it does not take malicious intent into account. While deliberate deception of information with malicious intent is known as Disinformation. Within its ambit, misinformation includes half-truths as well as misleading or inaccurate information. Misinformation has affected individuals’psychological ability[5]to understand health issues, address societal problems, and climate change and also affects the stability of Democracy and society.

Algorithms[6]exquisitely find content according to the user's mood and interest, but fail to distinguish between sarcasm, innuendo and opinion. Optimised for generating advertisement revenues and engagements, it amplifies falsehood and misinformation. To maximise revenues,[7] the social media algorithm suggests half-truths, misleading acts to enthral users' attention to their screens, which is the sole justification for the catchy and emotive news headlines.

Frances Haugen,[8] the Facebookwhistleblower, had already exposed the system and harms of algorithms.It poses a profound risk given the immense collection of personal information that algorithms and social media platforms harvest, targeting and manipulating individual users.Manipulating even to the extent of government selection in democratic elections, as in the case of Cambridge Analytica, working with Donald Trump’s election team using Facebook’s data[9]of around 87 million and trying to influence voting.

REGULATING THE FREEDOM: THE CONSTITUTIONAL ASPECT

The other aspect of the story is the civil rights and liberties guaranteed by the Grundnorm of the nation. The guard of Article 19(1)(a)[10] is often used by content creators and media writers to hide their malice. The Constitution embodies all fundamental rights in Part III, Article 19,which guarantees Freedom of speech and expression, which is succeeded by certain reasonable restrictions in Article 19(2).[11]

Fundamental Rights are the threshold restrictions on the state in the exercise of its sovereign functions. It is the constitutional obligation of the state not only to respect but also to safeguard these rights. The doctrine of reasonable restrictions[12] balances the state mechanism. It ensures the rights enshrined in the grund norm do not disrupt public order or compromise the larger aspect and framework interests of the society.

In the United States, the First Amendment[13] protects and guards the fundamental freedom of speech and expression. It requires that the restrictions and limitations on the fundamental rights are constitutionally justified. In order to restrict the freedom, the state must demonstrate a compelling and sufficient reason for state interest and should try to employ the least restrictions in attaining the objective.

The United States’ courts have struck a balance between the fundamental rights and the reasonable restrictions on them. In the case of NetChoice v. Griffin,[14] the court invalidated and nullified an act that mandated verification of age from social media users on the grounds of violating the First and Fourteenth Amendments. The ruling highlights the regulatory limits on online platforms and misinformation. It emphasises the need and obligation of the legislative framework to uphold free speech and digital security, while adopting well-defined content.

The judicial system in India has, time and again, proactively worked towards balancing the application of the legislation of the state for restricting the freedoms, and the constitutionally guaranteed theory of reasonable restrictions. The judiciary applied the principle and severed Section 66A of the Information Technology Act, 2000, for violating the fundamental freedom granted in Article 19(1)(a) and being beyond the standards of reasonable restriction in the Shreya Singhal case.[15]As well as in the case of Pravasi Bhalai Sangathan V Union of India,[16] the landmark judgement that focused upon the urgent need for a sophisticated and comprehensive legislative framework to regulate hate speech.

MISINFORMATION IN ACTION:LIES AND LOOPHOLES

The discussion becomes more important as the challenge of misinformation has become more demanding in contemporary times.Hinderance in the democratic process is prominent with unprecedented levels of deepfakes[17] and manipulated media to influence voters' behaviour,especially those with less media literacy. The POTUS run of 2024[18] saw prominent instances of deepfakes and misinformation, which include video alterations suggesting then-President Biden’s remarks on Russia and war threats- deepfake images of the current President Trump revolving around Epstein's island scandal.

The 2019 pandemic illustrated the vehement danger posed by misinformation, false claims about vaccines, treatments, homeremedies[19]to cure the virusand potential claims and extent of harms caused by vaccines, forcing the WHO[20] to do press releases to stop this ruckus of misinformation. Misinformation develops a culture of “distrust” that challenges social unity and humanity. The erosion of trust over each other takes the form of cultural shifts, riots impacting social, economic and political stability. The phenomenon of “truth decay” due to misinformation has blurred the lines between fact and opinion, resulting in creating distress.

CHARTING A COURSE FOR RESOLUTION

One of the promising approaches towards resolution is promoting transparency,which promotes accountability without directly restricting speech. Transparency is a major counter to the issue of privatisation of Censorship.There is a structural dominance[21] by social media platforms, where they act as arbiters in selecting content, favouring their algorithms and community guidelines driven by commercial interests. The unilateral terms and conditions of community guidelines and standards,[22] though, have tried to put barriers on hate speech and influence operations, but the aspect of unnecessary take-downs by private entities raises fundamental questions on accountability and transparency.

Transparency in algorithms is a mandate to provide information about algorithm systems, and audits conducted regularly reveal significant system issues in automated moderation systems[23] used by social media platforms and websites, to control the voluminous content on digital media. Awareness of international guidelines and mandates, adherence to and compliance with developing laws in the same line, such as the Digital Services Act,[24] would promote recognition and legitimate promotion of marginalised and true voices. Such promotion would address the issue of over-censorship and concealment of vulnerable social facts such as social equity, equality, and justice.

The active engagement of individuals and the proactive steps of Non-Government Organisations against the spread of misinformation are a promising and positive step towards curbing the issue. A ray of hope and optimistic vision is depicted when, in conjoint survey[25] report, during the pandemic, the United States’ 66% respondents voted in favour of deleting the social media post spreading misinformation. Media literacy and misinformation awareness camps and programs promise a positive change and are a practical, long-term solution to the issue at hand.

CONCLUSION

Regulation of misinformation, along with protecting the spirit of freedom of speech and expression, is one of the most crucial affairs in the digital epoch. It is a vain illusion to devote thought to the attempt to solve the problem by legislative enactment. Such restrictions should not be absolute at once, but thought should be given to how the problem may best admit of solution, together with education of the public upon the subject of this disease.

The regulation of misinformation cannot be considered to be merely a socio-legal problem, but a basic question for laws and constitutional principles of freedom and reasonable restriction. Commercialisation of algorithms comes at the cost of a threat to the democratic setup, public health and social inclusiveness. A harmonious approach to deal with the constitutional freedom and reasonable restriction in the light of justice has become quintessential for the digital sphere, to come out of the quagmire of misinformation. An individual at the stage of digitalisation should reasonably attempt to differentiate information from misinformation and put in the endeavoursto justify the positive side of the basic fundamental freedoms guaranteed by the grundnorm, respecting the values sought to be given effect in the social paradigm.

[1]“Over 70% Indians rely on online media for news, majority on social media: Report”,The Times of India, June 22, 2024, available at: https://timesofindia.indiatimes.com/india/over-70-indians-rely-on-online-media-for-news-majority-on-social-media-report/articleshow/111146576.cms (last visited on May 15, 2026).

[2]Taylor Nelson, Nicole Kagan, Claire Critchlow, Alan Hillard & Albert Hsu, “The Danger of Misinformation in the COVID-19 Crisis”, 117(6) Missouri Medicine 510-512 (2020), available at: https://pmc.ncbi.nlm.nih.gov/articles/PMC7721433/ (last visited on May 15, 2026).

[3]Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), available at: https://supreme.justia.com/cases/federal/us/485/46/ (last visited on May 15, 2026)

[4]“Misinformation”, Wikipedia: The Free Encyclopedia, available at: https://en.wikipedia.org/wiki/Misinformation (last visited on May 15, 2026).

[5]American Psychological Association, “Misinformation and Disinformation”, available at: https://www.apa.org/topics/journalism-facts/misinformation-disinformation (last visited on May 15, 2026)

[6]Jim Fournier, “How Algorithms are Amplifying Misinformation and Driving a Wedge Between People”, The Hill, Nov. 10, 2021, available at: https://thehill.com/changing-america/opinion/581002-how-algorithms-are-amplifying-misinformation-and-driving-a-wedge/ (last visited on May 15, 2026).

[7]Stephan Lewandowsky & Anastasia Kozyreva, “Algorithms, Lies, and Social Media”, OpenMind Magazine, Dec. 15, 2022, available at: https://www.openmindmag.org/articles/algorithms-lies-and-social-media (last visited on May 15, 2026).

[8]Dan Milmo, “Frances Haugen: ‘I Never Wanted to be a Whistleblower. But Lives were in Danger’”, The Guardian, Oct. 24, 2021, available at: https://www.theguardian.com/technology/2021/oct/24/frances-haugen-i-never-wanted-to-be-a-whistleblower-but-lives-were-in-danger (last visited on May 15, 2026).

[9]Nadeem Badshah, “Facebook to Contact the 87 Million Users Affected by Data Breach”, The Guardian, Apr. 8, 2018, available at: https://www.theguardian.com/technology/2018/apr/08/facebook-to-contact-the-87-million-users-affected-by-data-breach (last visited on May 15, 2026)

[10]The Constitution of India, art. 19(1)(a), available at: https://indiankanoon.org/doc/1142233/ (last visited on May 15, 2026).

[11]The Constitution of India, art. 19(2), available at: https://indiankanoon.org/doc/493243/ (last visited on May 15, 2026).

[12]Rachit Garg, “Reasonable Restrictions on Fundamental Rights”, Apr. 18, 2021, available at: http://blog.ipleaders.in/reasonable-restrictions-on-fundamental-rights/ (last visited on May 15, 2026).

[13]Constitution of the United States of America, amend. I, available at: https://constitution.congress.gov/constitution/amendment-1/#amendment-1 (last visited on May 15, 2026).

[14]Jesse Lieberfeld, “Constitutional Barriers to Social Media Regulation”, Disruptive Competition Project, Apr. 14, 2025, available at: https://project-disco.org/privacy/constitutional-barriers-to-social-media-regulation/ (last visited on May 15, 2026).

[15]Shreya Singhal v. Union of India, MANU/SC/0329/2015 : (2015) 5 SCC 1, available at: https://www.manupatracademy.com/legalpost/manu-sc-0329-2015 (last visited on May 15, 2026).

[16]Jyoti Prasad, “Case Commentary on Pravasi Bhalai Sangathan v. Union of India”, The AmikusQriae, available at: https://theamikusqriae.com/case-commentary-on-pravasi-bhalai-sangathan-v-union-of-india/ (last visited on May 15, 2026).

[17]Brady Smith & Jack McPherrin, “Election-Related Deepfakes: Understanding the Threat and Exploring Potential Solutions”, The Heartland Institute, Aug. 21, 2024, available at: https://heartland.org/publications/election-related-deepfakes-understanding-the-threat-and-exploring-potential-solutions/ (last visited on May 15, 2026).

[18]Emil Sayegh, “The Battle for Truth in Election Seasons: AI-Generated Deepfakes”, Forbes, May 14, 2024, available at: https://www.forbes.com/sites/emilsayegh/2024/05/14/the-battle-for-truth-in-election-seasons-ai-generated-deepfakes/ (last visited on May 15, 2026).

[19]Geeta Pandey, “Delhi Riots: How Misinformation and Hate Speech Sparked Violence”, BBC News, Mar. 17, 2020, available at: https://www.bbc.com/news/world-asia-india-51910099 (last visited on May 15, 2026).

[20]World Health Organization, “Combatting Misinformation Online”, available at: https://www.who.int/teams/digital-health-and-innovation/digital-channels/combatting-misinformation-online (last visited on May 15, 2026).

[21]David Erdos, “Private Censorship and Structural Dominance: Why Social Media Platforms Should Have Obligations to Their Users under Freedom of Expression”, 81(4) The Cambridge Law Journal 729-758 (2022), available at: https://www.cambridge.org/core/services/aop-cambridge-core/content/view/D711D2F1C65CAEE1C08CC0F40A613525/S0008197322000484a.pdf/private_censorship_and_structural_dominance_why_social_media_platforms_should_have_obligations_to_their_users_under_freedom_of_expression.pdf (last visited on May 15, 2026).

[22]Alicia Wanless & Michael Berk, “How Social Media Platforms’ Community Standards Address Influence Operations”, Carnegie Endowment for International Peace, Apr. 1, 2021, available at: https://carnegieendowment.org/research/2021/04/how-social-media-platforms-community-standards-address-influence-operations?lang=en (last visited on May 15, 2026).

[23]Ralitsa Golemanova, “Automated Content Moderation: What You Need to Know”, Imagga Blog, available at: https://imagga.com/blog/automated-content-moderation/ (last visited on May 15, 2026).

[24]European Commission, “The Digital Services Act”, Shaping Europe’s Digital Future, available at: https://digital-strategy.ec.europa.eu/en/policies/digital-services-act (last visited on May 15, 2026).

[25]Nicole Siller, “Free Speech vs. Harmful Misinformation: How People Resolve Dilemmas in Online Content Moderation”, idw – Informationsdienst Wissenschaft, Feb. 8, 2023, available at: https://nachrichten.idw-online.de/2023/02/08/free-speech-vs-harmful-misinformation-how-people-resolve-dilemmas-in-online-content-moderation?groupcolor=3 (last visited on May 15, 2026).

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