Is the arrival of 'fake news', fake news?

Camp Clinton cried foul - it was Facebook what won it, as Mr Zuckerberg has not been heard to observe. But is the arrival of fake news itself fake news?

Fake news has existed for a long time and there are legal remedies for that, argues David Engel
Fake news has existed for a long time and there are legal remedies for that, argues David Engel

While all the focus is currently on Facebook, Twitter and other social media platforms, the mainstream British press, or at least sections of it, is no stranger to publication of stories which have not been verified, have come from unreliable sources, have been set up by publicity hungry individuals, or have just been plain made up on a quiet day at the news desk.

Also see: Parliament 'fake news' inquiry must be properly targeted, says PRCA

Facebook is reportedly to start (start?) providing training for its journalists (sorry, news curators), but in the meantime – while Facebook assembles its crack team of alpha hacks – where does all this leave a victim of fake news?

Do they, should they, have any legal remedies?

Despite the fact that it seems to come as a surprise to bloggers, tweeters and online purveyors of dubious content generally, the internet is not a law-free zone.

So if fake news is defamatory of a person, or of a business, i.e. it is damaging to her, his or its reputation, then the law of defamation applies in the usual way.

Even if it is not defamatory, but is nonetheless false and malicious (which, from a strictly legal perspective, can simply mean that the author was reckless as to its truth or falsity – pretty much a dictionary definition of fake news), then both the author and publisher of that content will be liable in malicious falsehood.

Again, if the material is speculation about a person's private life then, even if it is untrue, it may well be actionable.

Somewhat counter-intuitively, the law recognises a concept of 'false privacy'.

This applies where information is put into the public domain, which infringes a person's right to privacy, even if that information is untrue, or, to put it another way, fake news.

It may well be that a few well-chosen legal actions might have a more immediate impact than any number of pious exhortations from politicians or 'proper' journalists.

As the Gawker website recently discovered, if your victim decides to go legal, unlawful publication of private or defamatory content can prove terminal to the business model.

Of course, there is also plenty that the tech giants could be doing, starting with actually enforcing their own user terms and being a bit more supportive of 'notice and take down' requests.

Yes, it will cost. But perhaps that's the price of making vast amounts of money from publishing user-generated content and trading the data of those users.

The courts will always try to strike a balance between the right to freedom of speech and the right to reputation. Is it too much to ask social media platforms to do the same?

Back in the day, printers could be (and were) found liable for the content of material printed by them.

Should today's equivalents be able to shirk their responsibilities just because they are operating online rather than offset?

David Engel leads the reputation team at Addleshaw Goddard LLP

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