Fake News: A Legal Perspective

The concept of "fake news" has garnered substantial attention in recent years, evolving from its satirical literary origins into a passionately criticized Internet phenomenon. Whether described as rumors, "counterknowledge," misinformation, "post-truths," "alternative facts" or just plain damned lies, these false statements of fact typically are published on Web sites and disseminated via social media for profit or social influence.

While fake news publishers are regularly taken to task in the court of public opinion, we are unaware of any prior structured discussion of the unique legal issues surrounding the publication of fake news. This article evaluates examples of fake news publications to present a workable definition of "fake news" for purposes of our legal analysis. We then explore many of the legal and regulatory hurdles facing online fake news publishers. This article concludes by discussing some of the legal protections available to fake news publications and publishers of other online content.

What Is "Fake News"?

Before defining "fake news," it is important to consider actual examples of fake news and how fake news publishers operate. In one example, which took place shortly before the most recent US presidential election in a series of events now infamously known as "Pizzagate," fake news publishers in Macedonia circulated a false political conspiracy theory that former First Lady, Secretary of State, and presidential candidate Hillary Clinton and other prominent Democratic political figures were coordinating a child trafficking ring out of a Washington, DC pizzeria by the name of Comet Ping Pong. The fake news publications were widely shared via Facebook and directed readers to Web sites for purposes of generating advertising revenue. In a bizarre turn of events in December 2016, a man who read the fake news publication drove from North Carolina to Washington, DC and shot open a locked door at the actual Comet Ping Pong pizzeria with his assault rifle as part of a misguided vigilante investigation. He subsequently was arrested.1

In another example from early 2017, 20th Century Fox worked with a fake news publisher to create five Web sites, with names such as the Houston Leader, which were designed to imitate traditional online news sources. The Web sites published articles featuring false information about prominent public figures (e.g., Lady Gaga and President Donald J. Trump) and controversial topics of public interest (e.g., mental health and vaccinations) and were shared widely via Facebook. In mid-February 2017, it was discovered (to sharp public criticism) that 20th Century Fox had orchestrated the creation of these fake news publications in an effort to publicize the Fox feature film "A Cure for Wellness," by including plot references to the film and promotional hashtags such as #cureforwellness in the subject articles.2

As the above-referenced examples illustrate, the cornerstone of a fake news publication is its falsity— the principal statements of fact communicated in fake news articles are fabricated and untrue. Further, fake news publications are intentionally or knowingly false. Fake news publishers do not reasonably believe that the stated facts are true. Negligent and reckless false publications of fact (including erroneous publications by mainstream media sources), while potentially legally actionable, fall outside the scope of this article. In addition, although print tabloids and news satire television series receive their fair share of legal attention, our fake news legal analysis set forth herein focuses on articles, videos, and graphics shared via the Internet. The vast majority of fake news articles are written about public figures or controversial current events and shared via social media with the hope of going "viral." By linking social media posts to Web sites that contain banner advertisements and/or other promotional content, many publishers of fake news are able to monetize the resulting Web traffic. In fact, a successful fake news publication can be shared millions of times and generate tens of thousands of dollars in advertising revenue.

For purposes of this article, we define "fake news" as the online publication of intentionally or knowingly false statements of fact. Others have defined "fake news" to exclude well-known satirical Web sites such as the Onion, which uses humor and exaggeration to criticize social and political issues.3 While it is true that obvious satire and parody often are legally protected speech, the underlying legal analysis that is applied to reach this conclusion is a complex and fact-specific endeavor better addressed through case-by-case analysis.

It is important to note that, 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. For example, since taking office in January 2017, the new administration has dismissed apparently factual reports from ABC, BuzzFeed, CBS, CNN, MSNBC, NBC, the New York Times, and the Washington Post as "fake news."4 However, traditional news publications fall squarely outside of our definition of "fake news" because they are not intentionally or knowingly false in nature. In an interesting role reversal, one print publication is contemplating filing a defamation lawsuit of its own against a local politician who repeatedly has described the established community newspaper as "fake news."5

Civil Legal Concerns

Fake news publishers most frequently are sued by private individuals or businesses seeking to collect monetary damages or injunctive relief. Some of the more common civil legal claims and associated defenses are described below.

Defamation

No legal claim is invoked more frequently against fake news publishers than the common law tort of defamation. Generally, defamation is the communication of a false statement of fact that harms another person's reputation or character. Spoken, unrecorded defamation is known as slander, while defamatory statements that are written or otherwise recorded are defined as libel.

In the United States, truth is an absolute defense to libel and slander claims. Likewise, pursuant to First Amendment free speech protections, each defamation plaintiff must prove that defamatory statements were published with the requisite intent, which varies depending on the plaintiff's level of public prominence. Harmful, false publications of fact concerning a public figure (e.g., a celebrity or government official) are actionable only if the publisher acted with "actual malice," that is, with either knowledge that the statement is false or reckless disregard for its falsity. Conversely, strictly private figures (e.g., your shy neighbor) do not need to prove actual malice, but rather are required only to prove that defamatory statements were published with negligence. However, if a private figure gains prominence in a specific, limited field or area of controversy, the actual malice standard may apply to such "limited-purpose public figure" for defamatory statements related to that particular field or controversy.6

As a practical matter, because our definition of "fake news" is limited to intentional or knowingly false statements, it is reasonable to conclude that such statements would satisfy the intent requirement for defamation claims. However, courts generally have afforded ample "breathing space" to defamation claims involving satire or parody. False statements in works of parody and satire typically are actionable only if they could be reasonably understood to describe actual facts about the plaintiff or actual events in which the plaintiff participated. For example, in 1999, the Dallas Observer published a false online article about a local district attorney and judge that allegedly arrested and detained a young girl with ankle shackles on potential criminal charges for writing a book report about Maurice Sendak's well-known children's book Where the Wild Things Are. In 2004, the Supreme Court of Texas held that, despite the fact that the subject article was not...