Journal of International Media & Entertainment Law (JIMEL)

This is the first of three posts in this series.

Southwestern’s Biederman Entertainment Blog is thrilled to provide readers with a roadmap to twelve articles on Fake News and “Weaponized Defamation” recently published in the Journal of International Media & Entertainment Law (JIMEL). JIMEL is the scholarly journal of the Biederman Institute, published in association with the American Bar Association’s Forum on Communications Law and the ABA’s Forum on the Entertainment and Sports Industries.

JIMEL’s last three issues have been devoted entirely to articles from Southwestern’s pre-pandemic symposium conference, entitled Fake News and “Weaponized Defamation”: Global Perspectives. Organized in partnership with the Southwestern Law Review and the Southwestern International Law Journal, the symposium’s Call for Papers yielded submitted abstracts from more than 100 scholars and practitioners from every corner of the world.

According to Professor Michael Epstein, JIMEL’s top editor, this collection of articles “digs deep into causes and impacts of disinformation spread by state and non-state actors; and the increasing use of asymmetric defamation litigation by the powerful to curtail an independent free press.” The scholarly contributions from this symposium “resound with new urgency in 2021,” Professor Epstein said, “as countries, including the United States, face political unrest and a gap between science and rumor in their efforts to contain a worldwide coronavirus pandemic.”

In this Volume (8.1):

  1. Fake News and Freedom of the Media • Andrei Richter
  2. A Federal Shield Law That Works: Protecting Sources, Fighting Fake News, and Confronting Modern Challenges to Effective Journalism • Anthony L. Fargo
  3. Combating Russian Disinformation in Ukraine: Case Studies in a Market for Loyalties • Monroe E. Price & Adam P. Barry
  4. Defamation as a “Weapon” in Europe and in Serbia: Legal and Self-Regulatory Frameworks • Jelena Surculija Milojevic

 


Volume 8.1, Issue 1

Fake News and Freedom of the Media

Andrei Richter

“The most recent developments in the dissemination models for media content, mostly online, have brought about the notion of ‘fake news,’ which subsequently gained great currency in intergovernmental and national policies and regulation.”

The growing issue of fake news is creating new challenges that could undermine democratic political processes around the world. What sets fake news apart from traditional definitions of disinformation is that, rather than describing a large-scale orchestrated campaign, fake news is conceived as a sporadic phenomenon, primarily relying on social media and other internet content to confuse populations and erode trust in media. Therefore, the complexities of this issue require intricate intergovernmental and national responses designed to understand and combat the threat of fake news in order to safeguard societal interests.

The United Nations has historically grappled with the tension between promoting the freedom of expression and protecting against the dangers of disinformation that could undermine peace and international relations. Prior discussions among member nations have entertained provisions encouraging restrictions against the dissemination of false information that could jeopardize friendly relations among states. However, there has been resistance to pursue this position due to concerns that empowering nations to extinguish allegedly false speech could lead to oppressive censorship and erode the right of free expression.

“Disinformation…generally refers to large-scale, orchestrated political and military actions to deceive people, while ‘fake news’ might be sporadic and applied as part of a more general mosaic, often aimed at confusing population[s] or arguing that there is no truth in the media, or elsewhere in the world.”

International organizations have also debated the right of correction or reply and whether it serves as a suitable tool for combating false information. On the one hand, this right might limit free speech because it requires media outlets to provide time and space for a correction, but alternatively, this right can be viewed as expanding freedom of expression by promoting a public debate while also providing a greater flow of information. Regional conventions began to gradually broaden the right of correction from just nations to also include individuals, allowing people to seek corrections of inaccurate information when such distortions attack their legitimate rights, dignity, honor, or reputation. With the increasing prominence of online media, some international organizations such as the Council of Europe have further insisted upon governments securing the right of correction or reply so that individuals can remedy the dissemination of incorrect information.

In response to growing, systematic pressure to tackle disinformation campaigns and propaganda, the European Union adopted a landmark resolution in 2016 to promote strategic communication meant to guard against these distortions that threaten to erode any notion of objective information or ethical journalism. The European Parliament endorsed a strategic initiative designed to guarantee greater accountability while empowering a framework for quality journalism by combating media concentrations that undermine media pluralism. The initiatives also sought to promote media literacy and quality journalism education built around public service.

“[T]o provide more accountability when dealing with disinformation…legal efforts should provide and ensure a framework for quality journalism and [a] variety of information by combating media concentrations, which have a negative impact on media pluralism.”

The European Union’s debates regarding fake news focus largely on internet intermediaries’ liability for the dissemination of provocative disinformation. In the 2000 Directive on Electronic Commerce, the European Parliament proclaimed that “information society service providers were not liable for mere conduit, caching, or hosting” such online content, nor were they required to monitor the information they transmitted or stored. These rules, however, only apply under certain conditions of non-interference and passive delivery of information society services. These provisions, though, do not prevent member states from requiring service providers to terminate or prevent an infringement, nor did it bar their court and administrative authorities from establishing a system designed to disable or remove access to illegal information. National laws may yet establish obligations for the service providers to promptly inform authorities of illegal activities conducted by the recipients of their services.

“The Resolution suggested a number of steps to be taken by the national authorities, such as inclusion of media literacy in the school curricula, support to awareness-raising projects and targeted training programs aimed at promoting the critical use of online media; and support to professional journalistic training.”

The Council of Europe recognized a persistent challenge in distinguishing between legitimate expressions of personal views and purposefully manipulative disinformation. It also acknowledged that the growing number of targeted hate campaigns and intentionally misleading online media could ultimately undermine or harm democratic political processes. To combat these negative effects, the Council of Europe suggested several steps that national authorities could implement, such as incorporating media literacy into school curricula, targeted training programs to promote the critical use of online media, and additional support for professional journalistic training. Additionally, though the Council of Europe recognized the importance of preserving the internet’s openness and neutrality, it also noted that the internet intensifies the risk of biased information and manipulation of opinion. Therefore, the Parliamentary Assembly recommended to the Member States of the Council of Europe to embrace policies that would prevent the risk of information distortion and manipulation of public opinion, primarily through regulations and incentives for self-regulation designed to promote greater accountability for internet operators.

The European Court of Human Rights has provided plenty of case law relating to the dissemination of false or defamatory information, with rulings grappling with protections for the freedom of expression and the role of the press. Safeguards afforded to journalists are predicated on the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism. Though a large portion of case law deals with defamation, the court has also ruled on matters related to political speech and the extent of protections and restrictions that must be afforded to that realm of expression to uphold basic human rights while also promoting a healthy democratic society.

In 2017, the OSCE Representative on Freedom of the Media, alongside other international entities, contributed to a joint declaration about the effect of “fake news” on media freedom. The declaration noted the growing issues of disinformation and propaganda while also noting the importance of unencumbered access to a wide variety of sources to foster public debate and a healthy democratic society. The declaration concludes that intermediaries, media outlets, academia, and civil society itself should pursue developing participatory and transparent initiatives to enhance greater insight into the effect of disinformation and propaganda on democracy, freedom of expression, journalism, and civic space in hopes of crafting appropriate responses to confront these issues.

“[T]he Joint Declaration noted that all stakeholders – including intermediaries, media outlets, civil society and academia – should be supported in developing participatory and transparent initiatives for creating a better understanding of the impact of disinformation and propaganda on democracy, freedom of expression, journalism and civic space….”

The prominence of fake news has compelled nations and intergovernmental entities to study the issue and develop strategic approaches for combating this threat on multiple fronts. Initiatives like requiring greater accountability for internet providers, empowering professional journalism, and strengthening media literacy will provide the framework necessary to curtail the danger posed by fake news.


Volume 8.1, Issue 2

A Federal Shield Law That Works: Protecting Sources, Fighting Fake News, and Confronting Modern Challenges to Effective Journalism

Anthony L. Fargo

Anthony Fargo’s A Federal Shield Law That Works: Protecting Sources, Fighting Fake News, and Confronting Modern Challenges to Effective Journalism provides a well-rounded analysis of the need for a federal shield law to protect both journalists and their sources from potential prosecution. Fargo suggests the law is needed to ensure an adequate level of journalism by protecting the people who provide it. To support this view, Fargo provides a historical analysis of both state and federal laws, an examination of recent congressional attempts to pass such legislation, and a review of the global view as to why such a law is important. Fargo concludes by providing suggestions on how this bill could be drafted to protect journalists, their sources, and the public from the potential danger of “fake news.”

“For about 100 years, journalists largely avoided using the First Amendment as a shield against official demands, instead arguing that the standards of their profession required them to keep promises they made to sources.”

Fargo begins his analysis by presenting the case of United States v. Sterling. United States v. Sterling, 724 F.3d 482 (4th Cir. 2013). In Sterling, James Risen, a New York Times reporter, published a book following 9/11 in which he used classified information from an unnamed source. A federal grand jury indicted Jeffery Sterling, a former CIA employee, on charges related to disclosing government secrets, concluding that Sterling was Risen’s source. The trial court subpoenaed Risen to testify that Sterling was indeed the source, but Risen refused, arguing that the information was privileged. The District Court of Eastern Virginia found that journalists are protected by a qualified privilege based on the First Amendment’s press clause, but the Court of Appeals later reversed the decision. The Court of Appeals found no constitutional privilege in a federal criminal trial court, nor a common-law privilege based on states’ adoption of a privilege. Fargo contends that this case is a prime example of the urgent need for a federal shield law for the “free flow of information.”

“Simply put, authorities wanted to know what various groups were planning, and journalists sometimes appeared to know more than the authorities did.”

Fargo then presents some of the earliest cases of such conflict for journalists and their sources dating back to 1735 in the post-Revolution era. By the 1950s, journalists’ defense of the First Amendment’s press clause became the center of focus when more claims arose as reporters began to report on more than just the government. With reporters knowing more than government officials in some societal and cultural events, the government pressured reporters to expose their sources with opposition from journalists to protect their sources. The common element amongst most of the popular cases surrounding this issue was that all of the journalists had allegedly either witnessed or been told directly about criminal activity by their sources. The “Stewart three-part test,” named after Justice Potter Stewart of the Second Circuit, became the standard for many federal courts afterBranzburg v. Hayes. Branzburg v. Hayes, 408 U.S. 665 (1972). The test provided for a qualified privilege for journalists to protect their sources unless: (1) the government could clearly and convincingly show that the information it sought was critically important to its investigation, (2) the information was relevant to the investigation, and (3) the information could not be obtained elsewhere. This led to numerous convictions of journalists across the country for remaining silent when subpoenaed by the courts. This turned out to be a good thing though. As Fargo points out, it motivated Congress to begin working on federal legislation and was the motivating factor for now more than 40 states to pass their own bills.

Fargo continues by explaining the efforts made following Branzburg to pass a federal shield law. The legislative effort to pass such a bill became significant in 2005. Since then, there have been more than 15 attempted bills, with the most recent bill introduced in 2017, House Bill 4382 (“H.R. 4382”). H.R. 4382 was identical to earlier versions of the bill introduced in the House, which passed in two sessions of Congress. This bill was not much different from current protections other than specifying who had the privilege and scenarios where disclosure of information or sources was required. The Senate attempted to pass a similar version of H.R. 4382 in 2013 but failed to gain full Senate approval in part based on its key differences in defining a “covered person.”

A Judiciary Committee report adequately synthesized congressional views on the bill. This report highlighted the need to clarify the “confusing collage” of law created by lower federal courts’ decisions with a “predictable balancing test” for judges to apply, which would also ease the “broad chilling effect” to journalists who faced increasing threats to compromise their sources. Moreover, opponents to the bills suggested that the outlined definition of journalist protected too broad of a population and sought to resolve certain criminal inquiries that outweighed the need to protect journalists’ sources. The remaining question was whether journalists pursuing highly sensitive stories would be better off with a federal shield law than they are now.

“The [shield] law was needed, the senators said, to avoid ‘a return to the late 1960s, when subpoenas to reporters had become not only frequent but virtually de rigeur.’”

Before providing his suggestions on how to resolve this congressional dispute, Fargo provides insight on international perspectives on the journalist’s privilege. Fargo begins by analyzing Article 19 of the U.N. Human Rights Commission’s International Covenant on Civil and Political Rights (ICCPR). The ICCPR provides freedom of expression in both verbal and print forms but does not explicitly provide for a journalist’s right to protect sources, although several courts and decision-making authorities with jurisdiction have recognized such right. Fargo highlights one decision made by the U.N. in 2011 that found for journalists’ right to protect their sources, particularly in the context of international human rights issues. The decision is significant because it binds all 168 countries of the U.N. to the finding as a global standard unless the exception to the privilege was “necessary and proportional.” This was not the only instance in which the U.N. found such privilege either, which further notes the importance of a federal shield law in the United States. Fargo then introduced a UNESCO report that outlined four areas of concern, which would fully address issues that arise in legislating for journalists’ privilege, but in a global context in light of modern technological advances. The one thing the report does not address is the issue of fake news and how it affects the journalism profession.

“Recognition of the value of protecting sources had led most nations to adopt the standard that confidentiality should be the norm and exposure should be the exception.”

Fargo closes by advancing his idea of how the United States can create a federal shield law that would be most favorable to journalists and help them deliver the highest quality of news to the public. Fargo examines all of the points previously explained and views from both sides of the political spectrum. He examines the need for the protection of journalists covering sensitive material while also addressing the issue of fake news in today’s world. Fargo also addresses concerns with third parties (i.e., phone companies and Internet service providers) and the subpoenas they face to provide information despite privacy legislation. He suggests an ideal “covered person” to provide adequate protection to those who deserve it while also making opposition to a federal shield bill content. Fargo urges Congress to move forward with a fully developed federal shield bill as the moment calls for it. Journalists across the nation need such protection to provide the highest level of news to the public and counteract the level of misleading information from informal news sources.

“In order to persuade Congress to pass a bill that would be effective, journalists may have to agree to swear under oath that their sources exist in order to silence those who cry ‘Fake news!’ when they dislike what is being reported.”


Volume 8.1, Issue 3

Combating Russian Disinformation in Ukraine: Case Studies in a Market for Loyalties

Monroe E. Price & Adam P. Barry

“Russia’s use of disinformation as another means of war is not a new phenomenon. One of the main differences between Soviet reflexive control and modern Russian disinformation warfare, however, is Russia’s use of new technologies that increase the speed, distribution and effectiveness of disinformation campaigns.”

Monroe E. Price and Adam P. Barry’s Combating Russian Disinformation in Ukraine: Case Studies in a Market for Loyalties is a forward-thinking article that discusses the international phenomenon of “fake news” from the Ukrainian perspective. Set to the backdrop of Russian’s information war in post-Soviet countries, this essay attempts to understand the decision-making process of contesting fake news and disinformation. As Ukraine finds itself at the center of a complex propaganda campaign with Russia, the authors seek to bring awareness to this issue and provide insight into how to address this conflict.

Furthermore, this essay provides a comparative analysis of two distinct approaches to combating disinformation tactics. The first approach is the Guidelines Project (“GP”), which seeks to promote the advancement of media freedom in Ukraine. The GP sought to build a consensus among stakeholders (i.e., government, journalists, distributors, and media institutions) based on international norms regarding freedom of expression. The second approach is called the Words of Wars Project (“WWP”). This approach described the patterns of influence within Ukraine and the varying modes of resistance. The WWP operated under the assumption that Ukraine was in a state of emergency and would thus justify repressive speech actions as “necessary” to preserve a democratic society.

“[T]he Russian government subsidized media outlets like RT to create and diffuse its messages through them; it used force to control terrain where it can also substantially control the information space.”

Russia’s use of disinformation as an attempt to destabilize the Ukrainian government is not only unorthodox, but unethical. It used information as a deliberate and powerful weapon to wage a war furthering strategic and military objectives. Russia’s tactics included distributing false news stories and using false personas to manufacture public debates on the internet. To effectuate Russia’s cyberwar in Ukraine, the government began exploiting “news media and social networking websites to disseminate fake news as well as cyberattacks on governmental agencies and Ukraine’s critical infrastructure.”

Ukraine has had a tough time balancing its people’s need for freedom of expression and the country’s national security. It continues to limit journalist’s access to the country through deportation and re-entry bans in part a result of troubling attacks on freedom of expression, including “an arson attack on a pro-Kremlin Ukrainian national TV channel Inter, the imprisonment of a journalist who supported defiance of the compulsory draft, the ban of American action film actor Steven Seagal from entering Ukraine for five years based on national security concerns and calls for Ukrainian comedians who mocked President Poroshenko to be banned from performing.”

Since Ukraine is a signatory of the European Convention on Human Rights, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights, the authors believe it is important for the government of Ukraine to implement a plan that addresses the Russian hybrid attack without placing severe restrictions on the people.

This essay illustrates international responses to the foreign propaganda onslaught from both inside and outside of their borders. The United States used the Countering Foreign Propaganda and Disinformation Act to create the Global Engagement Center to combat foreign disinformation efforts that undermine U.S. national security interests. Moreover, countries like Estonia and France have refused to issue press credentials to Russian journalists who endorsed hostile activities and propaganda, while countries like Lithuania and Latvia suspended Russian language television channels from their airways. The GP cautioned that these restrictions might have run afoul of the European freedom of expression protections.

”[T]hese two projects demonstrate the comparative importance of invoking international human rights norms as a central aspect of mapping defensive or offensive responses [to fake news or propaganda].”

The GP and WPP methods were analyzed to develop an appropriate response for Ukraine to combat Russian fake news and propaganda. Similarly, both projects attempted to affect the attitudes of the various players in the decision-making process, including the Ukrainian and foreign publics at large, as well as their elite and government officials. When applied, however, each project resulted in drastically different recommendations for the Ukrainian government.

There was a primary difference between GP and WPP approaches. The GP advocated recognizing and applying international norms to reach a consensus domestically. This approach is a stark contrast to the WPP position, which focused on a more aggressive approach that justifies actions such as preemptive restrictions in order to preserve the democratic society as a whole.

“Fake news and propaganda become ways introduced by various stakeholders to alter the information environment to their advantage . . . Picture a framework where actors, each with a material or political stake in an outcome, seek to influence the outcome. Each actor is subject to many influences and those influences have consequences.”

In summary, this essay provides two approaches (GP and WPP) on how to address the Russian hybrid attacks on Ukraine and a poignant look at the instrumental role that stakeholders have in shaping public attitudes and limiting the spread of fake news. Fake news and propaganda will continue to be used as a weapon to further various stakeholder’s political agendas. Countries like Ukraine will remain vulnerable unless more action is taken to combat this hybrid warfare. Therefore, countries that are the recipient of a hybrid attack must address the issue as swiftly as possible while considering the effects of such action on people’s individual liberties and freedoms.


Volume 8.1, Issue 4

Defamation as a “Weapon” in Europe and in Serbia: Legal and Self-Regulatory Frameworks

Jelena Surculija Milojevic

“There is no unilateral opinion on whether defamation should be a criminal act or not . . . The arguments for decriminalization are usually that prison is a [sic] too harsh a sentence for words said, but also that the criminal offences were usually used by politicians against journalists.”

Jelena Surculija Milojevic’s article details how Serbia fails to protect and restore victims of “weaponized defamation” by media outlets who face no real punishment. “Weaponized defamation” is defamation conducted in the long-term (usually by the media), seriously damaging the victim’s honor and reputation or resulting in life-threatening consequences. Several countries in the European Union treat defamation as a criminal act, resulting in harsh fines and imprisonment and preventing the media from peddling misinformation. In 2012, Serbia decriminalized defamation to preserve freedom of expression, a necessary step to keep the government from imprisoning journalists. However, without limitations on expression or punishments for defamation, tabloids have little incentive to hinder fake news and sensationalism.

The article first gives an overview of the European and Serbian approaches to defamation. In defamation theory, English/American common law emphasizes the importance of one’s honor and reputation, while continental Europe places the importance on protecting the freedom of expression. This approach provides journalists a shield in what they publish about individuals. The European Convention on Human Rights indoctrinates freedom of expression but allows for legislative limitations to protect a person’s honor and reputation. The Council of Europe urges member countries to avoid harsh anti-defamation laws, to avoid punishing expression, and to have a uniform system that prevents forum shopping by litigants.

On the other hand, Serbia (not a member of the E.U.) constitutionally protects freedom of expression, but with limitation and self-regulation. Legislation protects Serbian privacy, prohibits hate speech, and gives the media protection for coverage of newsworthy information. However, those in public office are expected to receive criticism, regardless of how it makes them feel. Broadcasters may violate a person’s reputation and honor if it promotes public debate. Since the decriminalization of defamation, it has become more difficult for public persons to protect themselves or receive retribution from false attacks in the media.

“In Serbia, Insult, Defamation, and Dissemination of Information on Personal and Family life were all criminal offences…against honor and reputation. In 2012, the defamation reference was simply deleted from the Criminal Code, while insult and dissemination of information on personal and family life remained.”

Milojevic compares defamation in Serbia before being decriminalized to the “weaponized defamation” of recent years. While careful to point out a serious democratic interest in not imprisoning journalists, the downside of decriminalizing defamation is that victims are required to show actual material damage to recover relief. Serbian courts do not consider harm to a person’s reputation alone enough for a victim to receive monetary damages. The result is a drop in claims against media outlets, allowing fake news and “weaponized defamation” to fester.

Milojevic first presents the harshness of Serbia’s former criminal treatment of defamation. These three cases feature the European Court of Human Rights (ECHR) finding that Serbia violated the right to freedom of expression. In the first case, a journalist called a mayor insane for his spending policies, rather than his actual mental state. The court criminally convicted the journalist, holding the dignity and reputation of a public person were more significant than the average citizen. The ECHR disagreed with this reasoning and overruled the court. In the second case, a journalist was criminally convicted for calling a historian a “fascist” for ethnic comments the historian made about minorities. The ECHR reversed, saying the journalist’s comments needed to be looked at in context. Finally, a journalist and editor for a newspaper were criminally convicted of defamation after publishing articles and cartoons lampooning the lawyer behind the pair’s previous criminal defamation convictions. The government claimed the lawyer was not a public figure, thus meeting a lower standard to punish defamers. The ECHR disagreed, finding the lawyer was well known to the locality in which the newspapers were published.

“[I]n civil law ‘legal persons do not have any mechanism to protect their reputation anymore, as they are required to prove material damage, which cannot be shown in every defamatory case, while a legal person, under the Serbian legal system, cannot claim moral (non-pecuniary) damage.’”

Next, Milojevic presents four examples of “weaponized defamation” in Serbia, showing how much a victim must suffer to succeed in a defamation complaint. The punishment in each was a small fine, and the publication required to publish the decision.

First, TV Pink waged a prolonged attack on a government official who suggested TV Pink’s buildings were intentionally overlooked when the government tore down illegal buildings. TV Pink ran hourly messages for 26 hours, accusing the official of corruption, wanting to destroy TV Pink’s buildings, and questioning his reputation. A criminal defamation complaint was filed, and TV Pink’s owner was found guilty.

The second case, after the decriminalization of defamation, involves TV Pink broadcasting allegations of a mayor’s corruption, claiming he stole from citizens and his own family. TV Pink ran hourly messages attacking the mayor, against newspapers and the Independent Journalists Association, both of which condemned the attacks. The Regulatory Agency for Electronic Media decided against TV Pink’s owner. The harm, however, was done, and the mayor was dismissed from his position.

In the third case, the Manager of the National Library of Serbia came under attack by newspapers for signing his support for a Montenegrin presidential aide’s freedom of expression who (tongue-in-cheek) suggested blowing up Serbian government officials at a celebration. The newspaper, Press, posted headlines that the library manager supported assassinating Serbian government officials but gave no details in the text of the article. The Press Council, a regulatory agency, decided Pressviolated the Journalist Code of Ethics. Still, the Manager was removed from his position. The affair caused public debate on a government official’s right to freedom of expression.

Finally, courts found the newspaper Informer violated the head of a broadcasting company’s honor and reputation through a campaign that portrayed the editor as having cheated his way into his job and fortune. The campaign hurt contributions to the company’s charity and required his family to have police-security. In reaching their decision, the court stated the Informerbreached the Journalistic Code of Ethics by failing to report accurate and complete information.

“[T]he Court of Appeals acknowledged . . . the ethical norms of the Journalistic Code of Ethics, stating that ‘the obligation of journalists is to publish accurate, objective, complete information, without delay, about events of public importance, respecting the right of the public to know the truth and the basic standards of the journalist’s profession.’”

Regulating defamation and freedom of expression can have dangerous results, but victims in Serbia need protection against the dire consequences of “weaponized defamation” campaigns. Additionally, broadcasters who wage these campaigns do not receive any real punishment. Milojevic offers that self-regulation by the journalism industry can play an important role, for now, but will need legal support. The court’s willingness to use the Journalist Code of Ethics is a hopeful start in the right direction.