In the past, concerns regarding news focussed on traditional media (typically newspapers and broadcasters) and the role they played in curating and controlling public information and sentiment. In recent months, the focus has shifted to the distribution of news on the internet and social media and the so-called ‘fake news’ problem.
What is fake news? As we have previously written, at its most basic, fake news is the distribution online of false information disguised as legitimate news stories. Motivations behind the publication of fake news may be financial (to attract internet traffic and/or advertising income); personal (to harm an individual/business reputation); or political (to influence the public’s viewpoint/ideology). There may be other reasons. The issue has come to the fore in recent months in headlines that alleged fiction and propaganda in the lead up to the 2016 US presidential election.
Facebook in particular came under criticism for its role in the spread of fake news in the lead up to the 2016 US election. Although Facebook’s CEO, Mark Zuckerberg, initially rebutted Facebook’s role in the spread of false news as a ‘crazy idea’, Facebook is now putting in place measures to combat its platform being used to distribute false information. These measures include the development of methods to identify authentic content and to predict which posts may become relevant, to flag false content, as well as working with real human fact checkers. Similar measures are being deployed by other social media platforms. Whilst this may become an effective means of curtailing the role of social media in the spread of false information, there is an inherent unattractiveness about social media platforms being relied upon to police fake news.
Can the law/regulatory authorities assist? In the UK, legal action may be possible, for example, where posts are defamatory, give rise to an invasion of privacy, or incite violence, hatred or terrorism. There are, however, hurdles to overcome, including whether the pre-requisite criteria for bringing a claim are satisfied (for example the “serious harm” test in UK defamation claims), as well as navigating the difficulties around jurisdiction and enforcement where the publisher is unknown or based in an overseas jurisdiction. As for regulatory bodies, The Office of Communications (OFCOM) in the UK regulates broadcast media rather than news on the internet; and UK press regulators the Independent Press Standards Organisation (IPSO) and the Independent Monitor for the Press (IMPRESS) will only regulate those newspapers (traditional and online) that sign up to their terms and conditions, which are a limited number. In any event, neither IPSO or IMPRESS are known to have taken any significant regulatory action to date.
As a result, a UK parliamentary committee (the Culture, Media and Sport Committee) has commenced an enquiry into tackling the problem of fake news. In particular, the committee is interested in:
- What is ‘fake news’; and when does legitimate commentary become fake news?
- The impact that fake news has had on public understanding of the world and also on the public response to traditional journalism.
- If there is a difference in the way people of different ages, social backgrounds and genders use and respond to fake news.
- Whether changes in the selling and placing of advertising have encouraged the growth of fake news, for example by making it profitable to use fake news to attract more hits to websites and therefore more income from advertisers.
- What responsibilities search engines and social media platforms should have in tackling the issue.
It remains to be seen what steps the UK parliamentary committee will propose to tackle the fake news problem; and whether any bespoke laws or regulations will be enacted or authorities set up to deal with the issue.