Journal of International Media & Entertainment Law (JIMEL)
This is the second of three posts in this series. The first post (Volume 8.1, containing 4 issues) can be found here.
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 (8.2):
- Credibility-Enhancing Regulatory Models to Counter Fake News: Risks of a Non-Harmonized Intermediary Liability Paradigm Shift • Teresa Rodríguez de las Heras Ballell
- Criminal Defamation: Still “An Instrument of Destruction” in the Age of Fake News • Jane E. Kirtley & Casey Carmody
- Stemming the Tide of Fake News: A Global Case Study of Decisions to Regulate • Amy Kristin Sander, Rachael L. Liones, and Xiran Liu
- Legal Responsibility for False News • Tommaso Tani
Volume 8.2, Issue 1
Credibility-Enhancing Regulatory Models to Counter Fake News: Risks of a Non-Harmonized Intermediary Liability Paradigm Shift
Teresa Rodríguez de las Heras Ballell
“[A]ny action to counter fake news should be widely coordinated and harmonized at an international level….Fragmentation, discrepancies among jurisdictions, legal arbitrage and ‘platform shopping’ would exacerbate the perception of misinformation and lack of credibility in the digital scene.”
Safe harbor provisions for online platforms have been a critical standard policy for worldwide internet regulation, but in the current digital landscape, traditional safe harbor provisions are an ineffective means of combating the spread of fake news and misinformation. To counter fake news, Professor Teresa Rodríguez de las Heras Ballell argues that a paradigm shift in liability policy is needed, one which increases the involvement of digital intermediaries and platform operators to enhance credibility and counter misinformation. She compares possible regulatory models and analyzes their implications.
Several aspects of modern society and culture are at stake. The implications of different alternative models are significant for shaping our digital society, the protection of rights, internet neutrality, and the preservation of trust. With regard to false content, the need to set a fair balance between the rights and interests at stake is trickier and even more imperative to protect the collective memory, the global dialogue, and access to information, knowledge, and culture.
Online intermediaries such as Facebook, Twitter, and YouTube are a determining component of misinformation machinery. Although fake news is typically user-fabricated content, intermediaries provide them with the features needed to gain impact: accessibility, visibility, virality, and, as a consequence, perceived credibility. Thus, digital intermediaries play a critical role in our digital society. These fundamental roles of intermediaries do, however, constitute their greatest vulnerability, as they exacerbate their exposure to risk when misinformation is shared on their platforms. The original source of the disinformation often cannot be easily located, nor effectively combated. So regulators turn their attention toward intermediaries, since they are more accessible, in an attempt to control this growing information challenge.
In the realm of fake news, containing accessibility, visibility, or virality, would significantly restrain the effects of misinformation. Intermediaries have the best ability to control these features on their platforms, and so these greater responsibilities most reasonably fall on them.
“A liability-based action would appear to be a very effective deterring and controlling strategy, less political, and more neutral, but in practice, it requires the transfer of power to private entities to manage the creation of opinion in the digital society. The consequences of such a model cannot be ignored.”
The current negligence-based liability system for intermediaries pivots on two key tenets: (1) the ban imposing a general obligation to monitor on service providers, and (2) a knowledge-and-take-down system. Accordingly, those service providers falling under the “safe harbor” provisions are exempted from any general obligation to proactively monitor or filter the information they transmit. Since intermediaries have no duty to monitor their content on a general or proactive basis, they are called to act only when and to the extent they have knowledge or awareness of illegal information or activities on their platform. However, after almost two decades of evolution, the digital scene has changed considerably. Therefore, the continuation of intermediary liability in its current form has come into question. Several trends have precipitated the debate on the need for a paradigm shift in the intermediary liability system.
“[F]ake news impact has two dimensions: the factual one that determines its veracity, and the social one that is based on perception. Whereas the former requires an objective test and needs a credibility reference endorsed by a trusted third party, the latter is diffuse and subjective and depends on community perception.”
The authors envision two scenarios in their case for a paradigm shift: a general duty to monitor and proactive monitoring duties in certain situations (blatantly illegal content, suspicious activities, hate speech, etc.). Under both scenarios, the critical policy decision is to determine whether intermediaries should have an obligation with a no-fault provision or a performance obligation. In other words, should intermediaries be liable if their monitoring mechanisms fail to detect illegal/harmful/false content? If they fail to act promptly? Or fail to remove content or disable access effectively? Whether the duty to monitor, even voluntarily, is an obligation of result or an obligation of means is uncertain.
In her conclusion, Professor Rodríguez de las Heras Ballell acknowledges that there are signs of change pointing at an eventual liability paradigm shift, but the resulting model is still uncertain and undefined. In regulating online content, a line must be drawn to distinguish between illegal, harmful, and false content. Falsity-related situations differ from those defined by illegality and harmfulness. A distinct and separate approach is needed to interpret the perceptible paradigm shift in the context of “fake news.” Further, the line between untrue content and opinion is very thin. The risk in employing zealous monitoring, verification, and filtering of potential false content is that it may lead to discrimination and marginalization of ideas, biased control, over-removal, or the prevalence of dominant points of view.
“The gravity of the problem created by systematic misinformation is not only caused by the falsity of the content, but also principally exacerbated by its incontrollable penetration, and its pervasive expansion producing a deafening ‘noise,’ silencing authoritative voices, and concealing fact-checked content.”
Professor Rodríguez de las Heras Ballell’s proposal to enhance credibility and counter fake news begins with a greater-responsibility model to ensure the cooperation of platforms and intermediaries with authorities. By starting here, it incentivizes innovation, increases competition, and is based on voluntary collaboration. However, this must be a temporary model – to provide a testing ground for the future devising of a regulatory model. Further, a defensible regulatory solution promotes transparency on content policy, notice and counter-notice procedure, and automatic filtering design and operation. It is cautious, prudent, and only slightly invasive. This model allows market discipline to work and lets users make their own informed and free decisions.
Preserving a negligence-based liability model is favorable: civil liability will be triggered only upon assessing the concurrence of basic legal requirements (negligence, causation, compensable damage). This model sets a fair balance of rights and interests, promotes innovation and competition among platforms to develop cost-effective monitoring procedures, and safeguards the free exercise of fundamental liberties in an open society.
“Popularity – number of likes, retweets, followers – as proxy for credibility, veracity or relevance is the expression of a deeper vulnerability of our society: the tyranny of quantification.”
The article concludes that any action to counter fake news should be widely coordinated and harmonized internationally. Regardless of which regulatory model is adopted, no change in the liability paradigm should be conducted on a local or regional basis. A disharmonized strategy against “fake news” would likely provoke a new variant of regulatory arbitrage – “platform shopping.” If there are discrepancies in regulations and if platforms have different policies and procedures, then the digital scene could fragment into a plurality of fora.
For regulatory competition to produce a positive effect, more rigorous regulatory models and more respectful platforms must manage to make their strategies a proxy for credibility. Then, complying platforms would become trusted third parties, returning to a centralized-trust model. Otherwise, if regulatory arbitrage deteriorates confidence and impedes users’ ability to identify what is credible, misinformation would endure, eluding the efforts made to counter it.
Volume 8.2, Issue 2
Criminal Defamation: Still “An Instrument of Destruction” in the Age of Fake News
Jane E. Kirtley & Casey Carmody
“Numerous examples in the United States and throughout the world show that if criminal defamation laws are available, people will use them as a way to stifle criticisms.”
In Criminal Defamation: Still “An Instrument of Destruction” in the Age of Fake News, scholars Jane E. Kirtley and Casey Carmody engage in an in depth and comparative law analysis of criminal defamation law as it currently stands on an international stage. Seeking to dispel the myth that criminal defamation actions are weapons wielded and abused solely by dictatorial leaders, their article demonstrates how the globalization and digitization of information has made it easier for journalists and organizations to openly criticize governmental leaders and other individuals in power. Such a spread of journalistic opinion and criticism often leads to criminal defamation actions initiated by government officials. In turn, it is blurring the line between utilization of criminal defamation claims as a form of protection and weaponization of criminal defamation claims as a retaliatory and punitive response to governmental critics. Kirtley and Carmody argue the collective international repeal of criminal defamation statutes will ensure freedom of the press, a necessary protection in the era of “fake news.”
“Nevertheless, the specter of punishment for criminal defamation remains a threat to the ability to practice robust journalism.”
Kirtley and Carmody’s analysis begins with an examination of extant criminal defamation statutes across the United States. The authors rely on precedent set forth in Garrison v. Louisiana as the foundation on which to base their argument that criminal defamation actions are often brought by one private party against another. Kirtley and Carmody proceed to explain that, until recently, criminal defamation actions involving public figures and matters of public interest were the exception rather than the norm. Their subsequent comparative overview of United States jurisprudence with respect to criminal defamation law, including the national adoption of various forms of anti-SLAPP statutes, demonstrates how infrequently public criminal defamation actions arise in the United States compared to its international counterparts.
“Rather than keeping the peace, criminal defamation could become the most potent form of ‘weaponized defamation’ and could act as an ‘instrument of destruction’ for free expression and the public’s right to know.”
Following their assessment of the United States’ criminal defamation law, the authors establish four major categories of international criminal defamation: criticisms perceived as insults, allegations of corruption, accusations of other questionable behavior, and accusations of sexual indiscretions.
The first and most common category involves “a government official or other public figure with significant social influence” who perceives a journalistic or organizational criticism as an insult, resulting in journalists “facing criminal investigations, charges, or convictions’’ for the publication of such criticisms. The second and third categories involve public officials or prominent figures engaging in some act of “malfeasance,” the egregiousness of which depends on whether or not the figure in question personally benefited from their actions. The fourth and least common category regarding accusations of sexual indiscretions, highlights a recent increase in criminal defamation claims in correlation with, and likely in response to, the rise of the #MeToo movement. Each category is thoroughly examined through the study of case law from various countries, broadening the reader’s understanding of criminal defamation law from a domestic to an international level.
Kirtley and Carmody then briefly assess the punishments and sanctions that regularly accompany defamation convictions. Such punishments range from financial penalties, imprisonment, to temporary bars to the practice of journalism. However, such punishments and sanctions are rarely enforced by the courts, thus resulting in governmental or official claimants dropping all charges or the exoneration of formally convicted journalists. In fact, as demonstrated in the United States, initial claims of public criminal defamation often result in counterclaims of rights violations, specifically violations of the First and Fourth Amendments in the United States.
“Invocation of the term ‘fake news’ to delegitimize the press, coupled with active use of criminal defamation laws worldwide, create an environment that could significantly undermine global press freedom.”
Finally, Kirtley and Carmody apply their comparative analysis of criminal defamation law to the present state of journalistic integrity and the war against “fake news.” The authors define “fake news” for the purposes of their article as “statements that are demonstrably false and disseminated with the deliberate intent to deceive.” A noticeable increase in international governmental efforts to “delegitimize the institutional press’ role as a watchdog of the government” raises global concerns surrounding freedom of expression and the strength, or fragility, of a government and its leaders.
In response to the chilling effects of “fake news” claims on journalistic and organizational outlets, Kirtley and Carmody call for governments worldwide to repeal criminal defamation statutes in an effort to protect the democratic right to expression. The authors propose their solution with the understanding that the repeal of such statutory protections, specifically for targets of criticism in the public sphere, may run counter to other individual value systems commonly held by members of the global community, including the right to protect one’s reputation and one’s dignity in the face of defamatory press.
“[A] government that is subject to robust debate is not diminished, but strengthened, as indeed are its people.”
As the authors conclude the article, they assert the health and strength of a governmental entity is measured by its response to criticism and such entities should continue to be held subject to the democratic standards set out by its constituents by means of freedom of speech. Although this writing was published prior to the United States’ 2020 presidential election and the national disintegration of public trust in the media, Kirtley and Carmody’s prescient call to arms to protect global journalistic integrity through the international repeal of criminal defamation statutes remains relevant and provides a potential, prospective cure to the endangerment of free speech.
Volume 8.2, Issue 3
Stemming the Tide of Fake News: A Global Case Study of Decisions to Regulate
Amy Kristin Sander, Rachael L. Liones, and Xiran Liu
Fake news is no new phenomenon, but the tides have changed in the way consumers digest information. In a world of instant publication on social media, what news is “fake news?” Should we regulate it? In Stemming the Tide of Fake News: A Global Case Study of Decisions to Regulate, Sander, Liones, and Liu identify three ways countries are regulating fake news and define why governmental regulation is ultimately incompatible with democratic values. In an age where regulation and the power of freedom of expression are constantly at war, Sander, Liones, and Liu argue the solution to the protection of our democracy lies in media literacy education.
“Countries have adopted various approaches in the battle against what some have called the ‘fake news epidemic,’ all of which tend to fall into three main categories.”
Sander, Liones, and Liu begin by discussing the first way countries regulate fake news: by leaving it to the private sector. Some countries, like the U.S., regulate fake news by providing funding for private sector initiatives. While some fake news stories are economically driven, others, like those circulating during the 2016 Presidential Election, are driven to influence voters. During the 2016 Presidential Election, denverguardian.com published an article about a murder-suicide of the FBI agent that suspected Hillary Clinton’s email leaks. While the story proved false, the political damage had already been done. In response, critics looked to industry leaders, like Mark Zuckerberg, to take responsibility for potential manipulation of public opinion. After facing such scrutiny, Facebook begun initiatives such as creating a “disputed” flag for users to flag fake news. Other sites have attempted similar initiatives, like Google’s “trust indicators,” FactCheck.org, the International Fact Checking Network, and Stopfake.org (a Ukrainian fact-checking site targeting Russian media sites).
“Despite some of these best efforts, the task of reducing fake news through social media has proved to be a difficult—arguably unwinnable—task.”
Though private initiatives allow regulation without governmental interference, private sector regulation is not perfect. After the continued attempts to find a more perfect means of fake news regulation, Facebook still faces public accusations of potential bias in targeting news stories with a particular ideology. No matter how fast the fact-checking networks may flag fake news, instantaneous publication on social media allows some fake news stories to leak through the cracks. The search for a better way to regulate, it seems, is ongoing.
Sander, Liones, and Liu next discuss governments’ attempt to regulate fake news through non-legislative efforts. Some European countries, like the Czech Republic, have designated agencies to investigate and regulate fake news. After the 2017 parliamentary and presidential elections, citizens of the Czech Republic demonstrated a general mistrust in political parties from the creation of several political websites. In response, the Czech Republic created the Centre Against Terrorism and Hybrid Threats to target and curtail fake news.
Similarly, Finland, in partnership with nine E.U. countries, the U.S. and NATO, created the European Centre of Excellence for Countering Hybrid Threats. The center was created in response to the spread of Russian fake news campaigns throughout Europe. Though these agencies were not created to formally police fake news with legislation, they were created as a means to regulate by designating experts to the fight against fake news.
Finally, Sander, Liones, and Liu look at governments’ legislative efforts as an approach to the regulation of fake news. Taking a more aggressive approach to the regulation of fake news, some countries, including China, Germany, the Philippines, France, Ireland, and the U.S., have created legislative means to put an end to fake news. China’s laws mark the strictest of fake news legislation, criminalizing the spread of fake news and encouraging citizens to report fake news sites. Germany enacted a law known as NetZDG, which fines up to $50 million for social media platforms that fail to remove fake news within 24 hours of notification or within 7 days of notification of “obviously illegal” content. Likewise, an anti-fake news law was enacted in the Philippines with fines of up to 20 million Pesos or 10 years in prison. French President, Emmanuel Macron, ran his campaign with proposed laws limiting fake news propaganda. Meanwhile, Ireland’s parliament enacted a law declaring fake news punishable by five years in prison or $10,000EUR, which was based on the Honest Ads Act of the U.S.
Although the U.S. defends freedom of expression in the First Amendment, the Honest Ads Act requires sites with at least 50 million visitors or individuals who spend over $500 on political ads to maintain records of political ads, media buyers, and rates. The state of California took a step further by enacting the California Political Cyberfraud Abatement Act, which criminalizes stories published with willful deception. Despite constitutional protection of the freedom of expression, U.S. leaders have taken steps to regulate fake news with legislation.
“Thriving democracies need information to survive; democracy requires that its electorate be well-informed, and the ‘right to know’ has become a standard that furthers the goals of government accountability and democratic self-governance… After all, a democratic government derives its legitimacy from the consent of the governed. For that consent to be meaningful, citizens must be informed not only about what their government is doing, but also about newsworthy events that may affect their daily lives, the behavior of individuals whom they may elect into political office, and the activity of nations around the world.”
Despite the global trajectory toward regulation of fake news, regulation does not comply with the democratic value of the freedom of expression. Sander, Liones, and Liu highlight why regulation will not solve the problem. There are two theories on free expression: the marketplace theory, which asserts that the answer to fake news is more news, and the theory of democratic self-governance, which posits freedom of speech as essential to a democratic society. Each theory demonstrates that censorship and regulation hinder the spread of communication and ideas, which is too great of a risk for a democratic society.
“Instead of attempting to legislate against fake news—a daunting task in the face of rapid technological change—society’s greatest efforts must be focused on educating citizens so they can identify it.”
Throughout history, freedom of expression and regulation have played a game of tug-of-war. Now, more than ever, Sander, Liones, and Liu emphasize the answer to the issue of fake news lies not in regulation or even mere reliance on the First Amendment but in media literacy education. In a 2016 study by Stanford University, more than 80% of middle school children and 40% of high school children could not distinguish ads from facts. While our children learn the ins and outs of technology, Sander, Liones, and Liu demonstrate a growing need for students to understand the stories they read on social media. Legislation and regulation will not put an end to fake news, they argue, but media literacy in our citizens might finally curb fictitious content while upholding our democratic values.
Volume 8.2, Issue 4
Legal Responsibility for False News
Recently, false news, especially within social media, has been a pressing issue for journalists, governments, and regulators. In his article, scholar Tommaso Tani determines to what extent the law should prescribe responsibility for false news and discusses the role of digital intermediaries. In beginning his exploration into false news, the author delves into two main approaches to freedom of expression. In doing so, he explains the rationale put forth by notable philosophers such as Plato, Protagoras, Rousseau, Milton, and Mill, then gives a proper definition for false news. It is, according to Tani, “only via a perfect understanding of its scope that it is possible to further assess the role that the law should have.” Following his definition of false news, Tani assesses the key differences between false news and defamation, hate speech and genocide denial. Specifically, the author introduces the term “legally identified harm” as a measurement of liability for false news, which is utilized in cases of defamation and hate speech. Finally, Tani determines the responsibility digital intermediaries should have with respect to false news by assessing Europe’s approach to liability for false news then exploiting its flaws.
“The fundamental definition of false news will be deduced: it is only via a perfect understanding of its scope that it is possible to further assess the role that the law should have.”
In assessing the philosophy surrounding the freedom of expression, the author introduces Plato’s idea of parrhesia, or freedom of speech. In his rationale, Tani proves that parrhesia is a hazard to democracy. Plato and his disciples manifested this ideology to express everyone’s right to absolute freedom of speech. This ideology, however, creates difficulty in determining truth from falsehood. The ideology of Jean-Jacques Rousseau, on the other hand, establishes that the protection of speech should be based on the speech’s ability to contribute to the common good, or public interest. Nevertheless, Tani found Rousseau’s ideology insufficient in relation to legal responsibility for false news. Next, the author briefly delves into the minds of three different Sophists: Protagoras, Milton, and Mill. In conjunction, the three Sophists contributed to the marketplace of ideas theory, a theory that the truth will likely emerge in an unrestricted market of speech and ideas, and to the harm principle, a principle that allows for the limitation of free speech when it would prevent harm to others.
After diving into its philosophical background, Tani then turns to an in-depth discussion of the United States and European approaches to freedom of speech and falsity. Freedom of expression in the United States, as prescribed by the First Amendment, is a byproduct of the ideology of Milton and Mill. Alluding to case law, specifically New York Times Co. v. Sullivan and United States v. Alvarez, Tani determines that “[t]he Supreme Court of United States has largely ruled in favor of expression on matters related to the First Amendment and has generally been against limitations of the right, allowing only narrow and well-defined exceptions to the protection of freedom of speech[,]” such as defamation, fraud, and incitement. That is, “[t]he only circumstance in which someone can be held responsible for ‘falsity’ is when such falsity causes demonstrable harm to third parties.”
“European countries have always been more inclined to adopt legislation—limiting freedom of speech in order to defend particular interests and to prevent the mistakes of the past.”
Europe’s approach to freedom of expression and falsity is heavily influenced by the ancient civic republicanism theory and by its history of totalitarian dictatorships. In particular, “European countries have always been more inclined to adopt legislation—limiting freedom of speech in order to defend particular interests and to prevent the mistakes of the past.” Case law of the European Court on Human Rights (“ECtHR”), such as Perincek v. Switzerland, Salov v. Ukraine, and Harlanova v. Latvia show Europe’s willingness to determine freedom of speech on a case-by-case basis. Thus, European countries have more opportunities to adopt legislation that restrict the freedom of expression, whereas the United States is generally against any further limitations to speech.
The author then delves into a discussion of the definition of false news. He defines false news by exclusion, or, in other words, by deducing what false news is not. In his analysis, he describes two extremes of false statements: (1) “unlawful” false statements and (2) irrelevant false statements. Bearing this in mind, Tani determines that the statements that fall between these two extremes “is the most accurate definition that can be given to false news.”
“It is evident that giving an authority the power to express judgment on the falsity of a piece of news puts freedom of expression itself in danger.”
After providing his unique definition of false news, Tani then examines the lawfulness of such news. In this analysis, Tani first explains why a public interest approach will not suffice as a cure for false news, analogizing that the adoption of such an approach would necessitate a valuation assessment of the news, thereby creating a scenario similar to the “Ministry of Truth” in George Orwell’s novel 1984. As such, the government in this case, would be authorized to determine the truth or falsity in news. As Tani properly states, “[i]t is evident that giving an authority the power to express judgment on the falsity of a piece of news puts freedom of expression itself in danger” and so a public interest approach would be utterly grave to democracy. Relying, however, on the harm-to-others doctrine, or the harm principle, Tani establishes that false news should not be limited or restricted unless it results in harm to others. In an effort to demonstrate the difficulty in categorizing false news, the author then introduces key differences between false news and three different speech crimes: defamation, hate speech, and genocide denial.
Finally, Tani discusses the liability of digital intermediaries by first explaining their liability within the European framework, which he finds to be an improper measure of liability because there is no illegal activity or information in false news. Tani concludes with a finding that “there is no ground to impose an obligation on digital intermediaries to block, remove, limit or flag false news.”