A Little Truth About Fake News—and the Law

By Tom Hagy.

Little has rocked the world of news publishing in recent decades more than the proliferation of fake news. It’s been blamed for everything from swaying voters in the 2016 U.S. presidential election to triggering tectonic political movements around the world to hastening the UK’s exit from the European Union, a move known as Brexit. And, some would argue, it’s been around for centuries.

For this article, we will take a stab at a definition, and do it in two parts:

An article, image or other form of content that is knowingly false or fabricated, that is then distributed via the internet, especially via social media, with the intention of:

1. Swaying opinion, sparking emotion or even causing outrage among individuals who—believing the information to be true—click, comment and/or spread the information and/or take some form of action that supports a particular cause or point of view
2. Getting the reader to click through the content, driving “click revenue,” and view and even click on web ads, driving more click revenue and, potentially, purchases

However you define it, fake news has always been around. When you think about it, we already had a perfectly fine word in “propaganda,” used most infamously and with murderous effect by Adolf Hitler’s Minister of Propaganda, Joseph Goebbels. Like many things with the internet, however, it’s all about magnitude—the incredible efficiency, the global reach and the thick wall of anonymity that social media and the web have enabled. You used to have to work hard to find a guy’s mugshot. Now, practically anyone in the world can find it with a mere Google^® search, as well as many photos of his dog, Shiloh, reclining in a beret and jaunty scarf.   

“Fake news—whether you accept our definition or another—can go back 2,500 years, some scholars say,” writes LexisNexis’ Korinne Bressler in a post titled The Evolution of Fake News. “But if you think of fake news as something that is intentionally false and widely distributed, and your goal is to spark some sort of societal change in line with your beliefs, there is a more definitive date,” she wrote. “The real birth of fake news … coincided with the invention of the Gutenberg Press in 1439, which made it possible for news accounts to be published and circulated widely with no thought of journalistic integrity.”

Since the internet and social media have made content distribution and sharing fast and cheap, information is coming at us through multiple firehoses. “All of this digital information has brought yellow journalism back to the forefront. With so much information out there, it’s often hard to stay on top of which stories are true or not,” Bressler writes.

Bressler goes on to chronicle some landmark events in the sordid history of fake news, including one from 1755 when the Catholic Church and other European authorities said only sinners were killed in the devastating Lisbon earthquake that year. “It was reported,” Bressler noted, “that the Virgin Mary saved everyone else.”

For word junkies, Merriam-Webster^® writes in a post titled The Real Story of “Fake News” that while the dissemination of spurious news isn’t new, “the term fake news is”—“new” being a relative term. “Fake news appears to have begun seeing general use at the end of the 19th century,” according to Merriam-Webster.com, which offered this headline: “Secretary Brunnell Declares Fake News About His People is Being Telegraphed Over the Country. —Cincinnati Commercial Tribune (Cincinnati, OH), 7 June 1890.”

When “Fake News” is Real News

  In a recent article titled Fake News: A Legal Perspective, published in the Journal of Internet Law, David O. Klein and Joshua R. Wueller of Klein Moynihan Turco LLP, caution that the definition itself is experiencing some fakery: “In recent months, a number of politicians and public figures have repurposed the phrase ‘fake news’ to describe reports from traditional news publishers that they dislike or find unflattering … However, traditional news publications fall squarely outside of our definition of ‘fake news’ because they are not intentionally or knowingly false in nature.”

To illustrate 21^st Century fake news, Klein and Wueller recounted one of the most infamous episodes—infamous because it sparked actual violence, while also being sad and ridiculous. “Pizzagate” involved an entirely fake and aggressively bizarre tale, which originated at a fake news factory in Macedonia, about a fictitious child sex trafficking ring purportedly operated by then-presidential candidate Hillary Clinton and other Democrats. This fictional enterprise was said to be operated out of a Washington, D.C., pizza shop called, of all things, Comet Ping Pong. This perverse fable spread like wildfire via social media, sparking so much rage in a North Carolina man that he drove to Comet Ping Pong with an assault rifle and revolver to investigate.  He fired several shots in the pizzeria, but, finding no enslaved children, this itinerant vigilante surrendered to the police. He is currently serving a four-year prison sentence.

Claims & Causes of Action

In their review of legal claims used to combat fake news, Klein and Wueller discuss the following in some detail: civil actions for defamation, intentional infliction of emotional distress, as well as intellectual property violations, and other speech-related torts, such as false light invasion of privacy, fraud, tortious interference, and unfair and deceptive trade practices. “Fake news publishers have also been on the receiving end of claims of regulatory violations in the areas of unfair and deceptive trade practices, criminal libel, and cyberbullying,” Klein and Wueller write.

“In 2012,” they add, “the Supreme Court in United States v. Alvarez invalidated the federal Stolen Valor Act of 2005, which criminalized falsely representing oneself as having been awarded military medals or decorations. Favoring counter-speech and refutation over government regulation of false speech, the court held that interest in truthful discourse alone was insufficient to sustain the criminal statute at issue.”

“As media attention and public condemnation of fake news continues to intensify,” the Klein Moynihan Turco attorneys write, “we predict that more lawmakers, regulators, courts and private citizens will explore legal and regulatory solutions that balance the societal importance of truth-seeking with the constitutional right to speak freely (and, at times, to lie).” Download a PDF of their article here.

In the meantime, what can be done?

Eric P. Robinson is an attorney and Assistant Professor of Journalism at the University of South Carolina. He blogs at bloglawonline.com. In a recent post, Fake News is a Real Dilemma for the Law, he says it is “all but impossible” to prevent the release of fake news. “The U.S. Supreme Court has held that such prior restraints are allowed only in the most extraordinary circumstances, such as when the information reveals national security information,” Robinson writes. “But even that is construed narrowly, with the court holding that the government could not stop The New York Times^® and other newspapers from publishing the Pentagon Papers, a classified history of our involvement in Vietnam, even as the war there was still going on. In another case that did not reach the Supreme Court, a federal judge barred publication of an article detailing in the inner workings of the hydrogen bomb.

“So if ‘fake news’ cannot be barred from publication, what can be done legally after it is published? Likely, not much,” Robinson writes. “That is because it’s difficult to sue unless the false information actually harms someone: by hurting their reputation, invading their privacy or causing another harm such as emotional distress.”

What Can Researchers Do?

Barbara Gray, associate professor and chief librarian at the CUNY Graduate School of Journalism, recently spoke on a LexisNexis webinar titled 10 Tips for Fighting Fake News: How to Fact Check Like a Pro. Gray offered these tools for smart and efficient research:

1. Be skeptical

2. Create your own habit of fact checking

3. Ask yourself "who says" and "are they biased"?

4. Use your gut

5. Look for citations of sources of information

6. Be aware of your own confirmation bias

7. Take notice if you are feeling emotional after reading the information—it could have been manufactured to exploit your bias

8. Write fast, but fact check slowly

9. Check primary sources such as government reports, court documents, and scholarly articles found in databases such as those provided by LexisNexis

10. Always give attribution, and be transparent about where you get your information

Ana Stevens of LexisNexis, in her post covering Gray’s comments, pointed to the destructive impact that fake news is having on real news. “According to a survey done by Gallup [and reported in The Washington Post^®] in the summer of 2016, Americans’ trust in mainstream media has reached an all-time low,” Stevens wrote. “As a result, more and more people turn to social media, where it is even more difficult to distinguish between factual versus biased reporting and satirical news. This is a dangerous trend—one that leads to falsities being spread and shared among those who are most vulnerable.”

In addition to the webinar featuring Gray, Stevens pointed to a handy How to Fact Check Like a Pro reference sheet. You can also watch a recording of the webinar on YouTube^®.

The International Federation of Library Associations, with help from FactCheck.org, has pitched in to help as well, saying fake news “has led to a new focus on media literacy more broadly, and the role of libraries and other education institutions in providing this.” IFLA has released an infographic with eight steps to verify an article. They encourage anyone to download and share widely. It’s titled, simply, How to Spot Fake News.

Legal Bloggers

Law firms are taking to the blogosphere as a way of sharing their expertise. They, too, need to be aware of fake news. “All firms should check their blogs and websites to see if they exhibit any of a growing list of tell-tale signs for suspicious content,” writes Thomas O’Toole, founder of Second Chair Media LLC.

O’Toole notes that one California lawmaker has introduced legislation (reported in The Washington Post) that would require state public schools to develop a curriculum to teach schoolchildren “the ability to judge the credibility and quality of information found on internet websites, including social media.”

O’Toole, a former legal publishing professional who now creates content for attorney websites, said there are plenty of fake news red flags. “One is suspicious domain names,” he wrote. “The .co country code domain was commercialized several years ago, offering .co as a competitor to .com for business use. Unfortunately, the .co top-level domain was used to spoof ABC News during the [2016 U.S. presidential] election … The terms ‘blogger’ and ‘wordpress’ in a domain name can signify that a website is a personal blog, not a news organization. Some media literacy educators have flagged these terms as a sign of fake news or, at a minimum, non-professional news content.”

Here is the list of O’Toole’s red flags, but you can get more details here:

1. Suspicious domain names

2. No "About Us" Page

3. Missing byline and contact information

4. Questionable currency or lack of post dates

5. Lack of sources and hyperlinking

6. Lack of uniform style

7. Poor design aesthetics

8. Headline and social media misdirection

O’Toole says this list of red flags also provides guidance for things to avoid in writing law blogs.

Robinson concludes his post, Fake News is a Real Dilemma for the Law, with a hopeful message:

“It would be difficult to stem the proliferation and distribution of ‘fake news’ under the law, and would be similarly difficult to use the law to stem charges that particular information is ‘fake news.’ But that does mean that the First Amendment rights of freedom of speech and the press have no role to play, just that it will likely be more in the principles that these rights embody. Under these principles, the way to combat false or misleading speech is with more speech, offering rational, factual information. The idea—the hope?—is that from this Tower of Babble, accuracy and truth will win out.”

Let’s hope Robinson is right.

This article was edited by Tom Hagy, managing director, HB Litigation Conference, and former editor and publisher of Mealey’s Litigation Reports.