Introduction
In the past year, there has been a pressing issue regarding social media and “Fake news.” Fake news by its very nature, can easily be in breach of defamation laws, especially when they seek to spread untruths and damage reputation, an exact breakdown of liable and the applicability to “fake news” will be forthcoming in this article. The more pressing element of it, would have to be that of combatting it with the force of the law, due to it being a phenomenon that has been amplified by the internet and social media, especially in the digital age.
“Fake news” in the context of libel
In considering defamation, and more specifically Libel, the UK definition under the statutes will be relied upon within the context of this discussion. Defamation, lacks any statutory definition within the UK, and so as a starting point there is the case of Sim v Stretch [1936] 2 All ER 1237 HL, in which Lord Atkin set out the question as to whether “the words tend to lower the plaintiff in the estimation of right-thinking members of society.” In the commentary on the opinion of Lord Atkin, it is usually outlined that under this question, there are two elements for the courts to consider, (1) is whether there is an insult to the claimant’s reputation, and (2) “right-thinking members” of society would thus think lower of the claimant due to the statements made.
The second element its critics such as Thomas Gibbons in 1996, with his Article “Defamation reconsidered” in which he determines that the concept of “Right-thinking members” is not plausible in a pluralistic society, and that the standards of such a group may change over time. However then there is the case of Berkoff v Burchill and another [1996] 4 All ER 1008 Court of Appeal, the court considered the impact of the statement on the persons reputation, in which Lord Justice Phillips stated that reputation is not generally dependant on physical appearance. The statements made must be considered to encourage others to shun or avoid the claimant, and there must be a damage to the reputation.
It also could be seen to set a high bar as to the requirement of damage, especially in the context of “Fake news” if it was for instance determined that right-thinking members of society, are those that are the more discerning readers of news and editorials, more inclined to fact-check. As then “Fake news” could be deemed to be of limited damage, which would limit the actions of those that would be harmed by the publishing of such falsehoods.
The other question in the application of Libel to “Fake news” is that of the malicious publication of a falsehood, which is an alternative to defamation, which requires false statements to be published maliciously. The first element of a false statement is given a broad interpretation under English law, as seen in the case of Kaye v Robertson [1991] F.S.R 62 in which they determined an interview given by someone who later lacked any awareness of such an interview taking place, as was the case given the claimant being in hospital for surgery after an accident would be considered an untruth. The court later in the case, established that the bar for the publication to be malicious is also fairly flexible, given the circumstances in which the interview took place, the court found that consent to the interview and its publication was non-existent and thus the publication was deemed to be malicious.
While it would seem that this can be applied with ease to “Fake news” there is an issue highlighted in Media Law, by Peter Carey. He highlights the differences between defamation and malicious falsehood, and that for the latter there must be proof of the damage caused, while defamation remains actionable per se (Without proof of damage). The differences between the two, and the nature of fake news, illustrates the legal complexity that needs to be navigated at this point in time.
Choice of Jurisdiction, and the nature of the internet
Even prior to the ubiquity of the internet, there have been questions as to where Libel takes place, which has been dealt with in various cases across the globe. With forum shopping being an issue, there is the case of Berezovsky v Michaels [2000] 2 All ER 986, which applied the tests required to establish whether someone could bring a libel claim in the UK, in which if the claimant had significant connections to the country and harm had occurred due to the publication, such as in Berezovsky, business negotiations in the UK had been discontinued due to the defamatory Forbes article. The other principle that exists, is the location in which the publisher is established, and that jurisdiction can award damages for all harm.
This approach to determining the competent jurisdiction is arguably effective in the digital age, but it does have its limits. Even if a competent jurisdiction is determined, the anonymity conferred by the internet can hinder the ability to find someone to bring a claim against. This issue was addressed Steven Seidenberg’s Article, “Lies and Libel: Fake news lacks straightforward cure” in which he outlines that even if you can determine who is responsible for the defamatory content, bringing them to the court in the country of harm is a completely different challenge, which sets out on the main issues regarding the internet. Thus the other option to tackle it in this area would be imposing liability upon the intermediaries, though as outlined by Riordan, there is the issue as to whether the intermediary’s participation in the publication of the material is sufficient to impose liability. The case of Richardson v Facebook UK Ltd [2015] EWHC 3154 (QB) illustrated the limited role that Social media websites have in the publication of defamatory material, as they dismissed the case against facebook on the basis that it was the wrong defendant.
In terms of liability for hosts, there is the case of Godfrey v Demon Internet Ltd. [2001] QB 201, the court determined that a Hosting is a publisher, if the material uploaded to equipment under its control, the material is defamatory, they have the capacity to remove the content and fails to do so within a reasonable period, and has been notified. In essence it requires them to be in control, and have knowledge of the content that is deemed to defamatory; which on its face may provide an avenue to tackle fake news in terms of hosts who can exercise control over the content and have been informed that the content is defamatory. Though this arguably represents a small arena in terms of having grounds to tackle fake news, given it can just be migrated to another source, or where they have their own dedicated platform.
The freedom of expression and conclusions:
In light of the above analysis of “Fake News” and the applicability of libel laws, it does seem plausible that it falls under the legal requirements for libel. Though there are questions as to the ability to effectively act, in light of the choice of jurisdiction under the relevant case law. A potential option would be to consider the enforcement of takedown and prevention to hosting services, domain name registrars, and social media.
The above option, does seem quite draconian in light of fundamental rights such as the Freedom of Expression under Art. 8 of the European Convention on Human Rights, and the 1st Amendment of the US constitution. If one was to consider that an obligation should be imposed on such service providers under legislation, it would have to be subject to certain tests, such as considering the intention and whether it was published with knowledge that it was false, with potential action for those that focus solely on publishing defamatory content. Though the element of intent, especially that of malicious publication, is arguably very hard to determine, even more so in the internet where anonymity is the norm. However for instance, if there is an outlet that has an extreme political agenda, and it is publishing defamatory falsehoods against political opponents, it could be argued that the intent can be reasonably inferred from evidence.
There is also a voluntary approach being taken by some companies, as researched by Seidenberg, such as google cutting off ad-revenue for fake news sites, and Facebook restricting their ability to put ads on the site. All in all, liability under libel may exist within the area of fake news, but having effective accountability within this area is the challenge that national governments, the courts and international institutions will need to tackle, while also consideration the fundamental rights and protection of a free press.
Links to Articles used:
http://www.abajournal.com/magazine/article/fake_news_libel_law
The Digital Millennial Lawyer 