What Are the Legal Rights of Fake News Victims?
"Fake news" was one of the biggest real news stories of 2016.
As the New York Times reported,
While some fake news is produced purposefully by teenagers in the Balkans or entrepreneurs in the United States seeking to make money from advertising, false information can also arise from misinformed social media posts by regular people that are seized on and spread through a hyperpartisan blogosphere.
In one case, the Times reports, a 35-year-old in Austin, Texas with just 40 Twitter followers tweeted about "paid protesters being bused to demonstrations against President-elect Donald J. Trump."
He had jumped to a conclusion about the "paid protestors" because he saw a large number of busses the same day protests took place.
In fact, the busses had been hired to transport people at a software conference.
But his erroneous Tweet was shared more than 16,000 times on Twitter and more than 350,000 times on Facebook.
In that case, the Tweet was essentially "harmless" — the election was over and it doesn't appear that that the misinformation had any lasting effects.
But fake news can also lead to real-world violence.
Comet Ping Pong
As NPR reported,
A man with a rifle who claimed to be "self-investigating" a baseless online conspiracy theory entered the Washington, D.C., pizzeria Comet Ping Pong on Sunday, according to local police.
The man allegedly pointed the gun at a restaurant employee, who managed to escape, then fired the weapon multiple times inside the restaurant.
The restaurant has been the victim of what NPR calls a "wholly fictitious conspiracy theory" that it is the center of "an international Satanic child sex abuse cabal hosted by powerful Democrats, including Hillary Clinton."
The man who shot up the restaurant said he was looking for "child sex slaves." He surrendered to police after assuring himself that there were none on the premises.
In addition to the armed attack, the restaurant owners have received hundreds of death threats.
What can a business — or an individual — do if damaged by a fake news story?
As NPR reports, Derigan Silver, a professor of media, First Amendment and Internet law at the University of Denver, says that "victims of fake news stories have legal recourse under defamation law."
Defamation is a tort and can also be a crime. To be liable under tort law, a defendant must:
- make an intentional false communication,
- either written or spoken,
- that harms a person's reputation,
- decreases the respect, regard, or confidence in which a person is held, or
- induces disparaging, hostile, or disagreeable opinions or feelings against a person.
Defamation in writing is called libel, and spoken defamation is called slander.
Defendants can be liable for making a defamatory statement in the first place and also for republishing it.
Different standards apply to defamation against public or private individuals. Under the US Supreme Court's decision in New York Times v. Sullivan, a public official or anyone who has voluntarily assumed a position in the public eye must prove that a defamatory statement was made with knowledge that it was false or with reckless disregard as to whether it was true or not.
A lower standard of proof applies to claims by individuals who aren't voluntarily in the public eye — presumably including the owners of Comet Ping Pong.