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Fake News, Real Damage

Fake news has been in the news—the real news—as the recent election saw both the number of fake news articles and how frequently these articles were spread skyrocket.  The problem was so bad that in the last months leading up to the election engagement (shares, likes, comments, etc.) with fake news on Facebook outstripped engagement with news from major news outlets.  This has led both Facebook and Google to announce that they’ll be taking affirmative steps to address the flood of fake news on their websites.

Entire fake news companies, such as National Report, Huzlers, World News Daily Report, and the News Nerds have sprung up over the last three years.  These companies all have the same basic business model, creating fake news to spread on Facebook with the goal of generating ad revenue.  The fake news business is booming too, with a single author can make over $10,000 a month.

The idea of fake news sites isn’t new, the Onion has been making satirical fake news stories since 1988.  However, while the new fake news companies mostly claim to be satire in the vein of the Onion their model has changed.  Fake news sites have realized that funny news satire pieces, such as those from the Onion, are less profitable than outright hoax news—no comedy, no message, just provocative lies.

These types of falsehoods can be dangerous, and not just because of misinformation.  Earlier this month a man from North Carolina assaulted a pizzeria in Washington D.C. with an assault rifle after reading a fake article saying that Hillary Clinton was running a child sex ring out of the shop.  The man currently faces criminal charges.

But there is more than the danger of people acting on these fake stories and believing them to be true.  There’s also the potential to ruin a person’s reputation with lies repeated frequently enough to be considered true by many.  This brings up the question, can the people who write these fake stories be sued for defamation by the people they write stories about?

How Does Written Defamation Work?

At the most basic level, a person can be liable for defamation where they communicate a false statement about somebody that damages their reputation, exposes them to ridicule, etc. This is a communication, so it has to be something that reaches the ears or eyes of at least one person who isn’t the person making the defamatory statement or the person the statement is about.  Those third parties must understand what the defamatory statement means and who or what group the statement is about.  Finally, the statement must be made with—at a minimum—disregard for the truth beyond that of a reasonable person.

Where defamation is spoken, it is called slander, where it is written it is called libel.  So if somebody was suing one of these fake news companies over news they produced, they’d be suing for libel.  Looking at the initial elements, a person off the street who had defamatory statements written about them would have a pretty dang strong case.  The companies are literally making up news, so they have actual knowledge of the falsehood of what they write and publish.  The news is also seen by millions and, unlike more clearly satirical articles like those from the Onion, is designed to look as much as possible like real news communicating a true message that those reading it would believe.

Satire vs. Defamation

Speaking of satire, most fake news companies would take issue with distinguishing them from satirical news such as the Onion.  Instead, they would argue that they are taking the idea of satirical news to the absolute edge by juxtaposing how ridiculous reality is—or by fooling people into believing their news.  There’s certainly a legal advantage to drive fake news companies to seek such classification—true satire cannot be defamatory as a matter of law.

This was determined in a case between well-known pornographic magazine Hustler and Jerry Faldwell after Hustler wrote about Faldwell in some particularly unflattering and salacious situations.  The courts felt that the words were satire and as satire were so outrageous that no reasonable reader could consider them to be an assertion of true facts.  Thus, true satire can’t be defamation because it doesn’t damage reputation because readers don’t believe it to be true.

This leaves the obvious question, what exactly constitutes satire?  To call this a complicated query would be an understatement.  Courts have struggled with this very question for years, many coming to different conclusions as to where the line is drawn.  However, it is generally agreed that satire is a work targeting an entity or entities—often but not always a government figure—for exaggerated commentary blurring the line between truth and the ridiculous.  The ultimate definition is a bit circular to the reason why satire is protected.  A true satire, for legal purposes, must blur the lines between truth and the outrageous in such a way as to make a reasonable person recognize that the satire does not express actual facts.

In determining this a number of factors come into play.  With something like the Onion, the history of the site as a source of exclusively satirical news would be considered in determining whether a reasonable person would consider them to be expressing actual facts.  Onion stories also aim to be over the top and include particularly ridiculous titles; both of which contribute to them being considered satire.  On the other hand, the new fake news sites that have cropped up have none or little of the reputation garnered by the Onion over its decades of existence.  What’s more, while their content is often ridiculous to a degree, their aim to appear as close as possible to real news makes them less likely to be true satire.

While each article would have to be considered on its own merits, these new fake news companies certainly don’t seem to be producing satire.  While they would certainly strenuously object to the opinion, they seem more interested in deception for profit than entertainment and commentary.

Public Figures and Privileged Defamatory Statements

Without the protections of satire, an article expressing false defamatory statements about a private person would almost certainly leave these fake news companies vulnerable to a lawsuit.  However, their most common choice of targets isn’t a person off the street—indeed when a person off the street is mentioned the person themselves is generally made up.  Instead, these fake news sources choose public figures as their primary targets.  This is likely mostly driven by the fact that these types of articles are the most profitable.  However, as a fringe benefit, it renders the fake news articles much less vulnerable to a defamation lawsuit.

As opposed to private parties, public officials and figures can only sue for defamation when they can show that the person making the defamatory statements actually knew or should have known that their statements were false.  Where this is the case, the statements are considered to be made with something called “actual malice.”

The reason for this requirement is simple, people should be free to criticize public officials and parties.  We are especially conscious of protecting the First Amendment rights of speech criticizing those in power.  For these reason, new outlets also are protected when they publish inaccurate events where those events are of public interest—once again so long as they do not do so with actual malice.

This means that when a fake news site publishes a made a story about a politician, such as their most frequent targets Hillary Clinton and Donald Trump, in order to sue them there would have to be a showing of actual malice.  This is generally quite hard to produce actual evidence of, generally requiring either a smoking gun email or evidence of a near total lack of fact checking.  However, these fake news sites are intentionally making up stories so they absolutely know their articles have no basis.

While fake news can be incredibly dangerous, their ultimate protection from defamation lawsuits is the same as what tabloids have employed for years.  First, actual malice can be difficult to prove even when it seems intellectually obvious.  Second, public figures often conclude that the exposure from a lawsuit will do far more damage than a one-off story.  However, fake news is achieving a reach that it has rarely had before.  As these stories become more widespread, or make the mistake of targeting an informed private party, fake news companies may well find themselves on their heels in a courtroom.

Jonathan Lurie


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