- 06 Jun 2025
Can You Go to Jail for Forwarding a WhatsApp Message? The Legal Truth About Fake News in India
The Legal Landscape of Fake News in India: Law, Technology, and Digital Responsibility
In today’s highly connected digital environment, the rapid spread of information has become both a convenience and a concern. Misinformation, commonly referred to as fake news, travels at lightning speed across platforms like WhatsApp, Instagram, YouTube, and Twitter. Most individuals have, at some point, shared unverified content which may be often without understanding its legality. But few realize that forwarding a misleading message could have legal consequences under Indian law. This article delves into the nature of fake news, the responsibilities of social media platforms, and how Indian legislation is evolving to tackle this challenge.
Understanding Fake News
Fake news refers to deliberately false or misleading information created with the intention to deceive, manipulate public perception, or provoke unrest. Such misinformation can be political, religious, or even satirical in origin. Despite the intent, the consequences can be severe. In India, there have been instances where fake news circulated via social media triggered communal violence, public panic, and even mob lynchings. The digital nature of these platforms allows such messages to reach thousands, if not millions, within minutes — compounding the damage before it can be controlled.
Section 79 and the Safe Harbour Principle
The legal framework around platform responsibility originates from Section 79 of the Information Technology Act, 2000. This provision introduces the Safe Harbour Principle, which grants immunity to digital intermediaries like WhatsApp and Instagram for user-generated content — as long as they follow due diligence. This includes publishing clear user policies, acting upon flagged content, and cooperating with authorities when required. The moment a platform knowingly hosts illegal content or fails to act against it, this protection is lost. Hence, social media platforms walk a fine line between neutrality and liability.
Regulating Fake News Without a Dedicated Law
India does not have a single comprehensive law targeting fake news. However, multiple legal provisions from different statutes are employed to address various forms of misinformation:
Under the Information Technology Act, 2000, Section 66D punishes online impersonation and cheating, while Section 69A empowers the government to block digital content in the interest of public order or national security.
The Bharatiya Nyaya Sanhita, 2023, replaces provisions of the Indian Penal Code and includes specific offences related to misinformation. Section 194 penalizes speech that incites enmity between groups, Section 195 addresses hurtful religious content, and Section 356 criminalizes spreading rumours that cause fear or unrest.
During emergencies, Section 54 of the Disaster Management Act, 2005 penalizes those who spread false information and cause public panic.
Traditional media laws, such as the Press Council of India Act and the Cable Television Networks Regulation Act, though focused on print and broadcast media, also have indirect applications in curbing digital misinformation.
Together, these statutes form a patchwork legal mechanism aimed at tackling the growing problem of fake news.
The Controversial Fact Check Unit and Judicial Pushback
In 2023, the government amended the IT Rules to create a Fact Check Unit (FCU) empowered to flag content related to government affairs as fake or misleading. Intermediaries were required to take down such flagged content. However, this provision was struck down by the Bombay High Court in March 2024. The court held that the amendment violated Article 19(1)(a) of the Constitution, which guarantees free speech. It observed that the provision lacked procedural safeguards, vague definitions, and conferred unregulated power upon the government.
This judgment reinforces a key constitutional principle that the fight against fake news must not come at the cost of democratic rights.
Are Platforms Still Protected? The Dual Nature of Liability
The question of liability for platforms like WhatsApp, YouTube, and Instagram hinges on their role. If these platforms act as neutral intermediaries and comply with all guidelines, they are protected under Section 79. However, if they fail to remove illegal content after complaints, ignore government notices, or allow the spread of misinformation, they may be held accountable.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 impose specific responsibilities on digital platforms. These include appointing grievance officers, responding to complaints within twenty four hours, and ensuring traceability of content when required by law enforcement. Significant social media intermediaries, which include platforms with a large user base, have even stricter compliance requirements.
The Future: The Digital India Act
Despite the regulatory framework in place, fake news continues to evolve. The advent of deepfakes, artificial intelligence-generated misinformation, and virality-driven content on short video platforms presents new challenges that existing laws cannot fully address.
To bridge this gap, the government is preparing the Digital India Act — an upcoming legislation expected to replace the Information Technology Act. The new Act aims to regulate emerging technologies, provide clearer guidelines for intermediaries, establish enforceable fact-checking protocols, and impose stronger penalties for digital negligence. It also seeks to enhance transparency in content takedown processes through judicial oversight. The law is currently in draft stage and is expected to be shaped by public consultations.
Landmark Judgments Shaping the Narrative
Several court decisions have influenced how fake news is addressed legally. In Shreya Singhal v. Union of India (2015), the Supreme Court struck down Section 66A of the IT Act for being overly broad and violating free speech. In the Tehseen Poonawalla case (2018), the Court mandated preventive measures against mob lynching incited by misinformation. The Anuradha Bhasin case (2020) established legal standards for internet shutdowns. During the COVID pandemic, the Supreme Court in its suo motu proceedings recognised misinformation as a threat to public health and called for responsible reporting.
More recently, in 2025, the Parliamentary Standing Committee began reviewing the Safe Harbour provision after fake content linked to a terror incident in Pahalgam spread via YouTube. This prompted renewed calls for stricter accountability of digital platforms.
From Passive Users to Legal Participants
The digital age has transformed users from passive news consumers to active participants in the information ecosystem. Today, every individual with a smartphone can publish content that reaches thousands. While this has democratised communication, it has also increased responsibility. Courts have increasingly clarified that freedom of expression is not absolute. If a person forwards content that incites violence, causes panic, or defames others — they may be held legally accountable even if they did not create it.
Especially in sensitive situations, users are expected to verify whether the content they are forwarding could reasonably be considered false or inflammatory.
Encryption, Traceability, and the Privacy Dilemma
Platforms like WhatsApp often defend their inability to monitor content by citing end-to-end encryption. While technically correct, the 2021 Intermediary Guidelines mandate significant social media intermediaries to identify the first originator of a message when asked by law enforcement in serious cases such as terrorism or child abuse.
This requirement has sparked a debate between privacy advocates and law enforcement. While the former argue that traceability compromises user confidentiality, the latter stress that anonymity enables criminal behaviour. The upcoming Digital India Act is expected to provide clarity on when and how traceability can be enforced, along with appropriate safeguards.
Influencers and Creators: New Targets of Digital Accountability
With the rise of monetised content, influencers and content creators are now under legal scrutiny. Sponsored posts, misleading videos, or thumbnails that spread misinformation can lead to defamation suits or criminal prosecution. If content touches upon sensitive political or religious issues, creators may find themselves booked under Sections 194 or 195 of the Bharatiya Nyaya Sanhita or under Section 69A of the Information Technology Act.
The Role of Civil Society and Collaborative Solutions
The solution to digital misinformation cannot rest solely on the law. A collaborative model involving government bodies, civil society organisations, educational institutions, and digital platforms is essential. Several initiatives have already shown promise. Independent fact-checking websites like Alt News and BoomLive, digital literacy programs, community flagging tools, and voluntary content codes have helped slow the spread of false narratives.
The proposed Digital India Act may grant legal recognition to such fact-checking initiatives. However, care must be taken to ensure such mechanisms do not stifle free speech or become tools of censorship.
Conclusion: A Collective Fight Against Misinformation
The fight against fake news in India is not only a legal issue but also a technological and societal one. The challenges are complex, but the direction is clear — India’s regulatory framework is adapting to the new digital reality. From the Information Technology Act to the forthcoming Digital India Act, the law is increasingly focused on balancing accountability with freedom.
Platforms must fulfil their due diligence obligations. Users must understand the weight of their digital actions. Influencers and creators must recognise the implications of their content. Civil society must continue advocating for transparency, accuracy, and the protection of constitutional freedoms.
Ultimately, combating fake news requires a united effort across legal, social, and technological fronts. As India enters this new era of digital accountability, every click, share, and post must be weighed with a sense of responsibility.
Disclaimer
The contents in this article are just for informational purposes only. Efforts have been made to ensure the accuracy and reliability of information, the author(s) and publisher do not guarantee its completeness or precision. Any matter written in this article does not express the opinion of the author or the publisher. Additionally, it does not reflect the views of the organisation. Readers should self-analyse the information and perceive accordingly. The author(s), The publisher and the organisation are not responsible for any losses or damage occurring due to the interpretation of the article.
