Issue 263: 2021 01 21: False News

21 January 2021

False News

Damping it down.

By John Watson

Just occasionally the illusions fall away and one is left staring at the truth.  That happened last week with the banning of President Trump from various social media platforms.  Until then it was possible to be seduced by the argument that the platforms were simple noticeboards and that all responsibility for the content lay with those who posted the notices.  Now it has been demonstrated in the clearest possible way that the platforms exercise an editorial function and decide what material to publish, at least at the highest level.

So what does that mean in terms of policy?  It is all very well saying that the platforms are responsible for what is published, but as a practical matter they cannot possibly review every post to check whether it contains misinformation or false news.  How then can a balance be struck which suppresses the lies and the trolling but allows the internet to function as a method of legitimate communication?

First, to identify the mischief.  There is nothing new in the deliberate spread of misinformation to justify aggression, killing and attacks on minorities.  In the 14th century the spread of the Black Death was often blamed on the Jewish community and used as an excuse for genocide and pogroms.  Needless to say, it was all false news, and of course it was not spread by accident.  Wealthy minorities of a different religion are always tempting targets and their enemies look for reasons to rob and destroy them.  The spreading of misinformation was the first step in that process.  Then, on a more domestic scale, there were allegations of witchcraft.  If you wish to destroy an enemy, what about lurid stories of black cats, sacrificed babies and mysterious meetings in graveyards?  None of it true of course but, if the individual concerned had other enemies, they would credit the rumours until enough nonsense had been talked to justify a burning or drowning.

Yes, the vicious use of false news has always been with us, so what has changed now?  Why is it seen as more of a threat to political stability than it was in the past?  The key seems to be anonymity.  To start or spread a rumour in the past meant persuading people, and that created the risk that you would be identified and blamed by those who thought differently.  Posting anonymously on the social media carries no such risks and, of course, it is extremely easy to do.

If we wish to damp down the level of false news currently pervading the media, and also some of the abuse which is spread on it, a good start would be to attack the anonymity which surrounds those who post material.  Here, a mechanism would have to have two parts.  First, all media platforms must hold information on those who post.  Second, there must be a system for making them divulge the information in appropriate cases, without unduly limiting freedom of speech.

Although Anglo-Saxon cultures place a lot of weight on freedom of speech, it is by its nature a limited concept.  Yes, in the UK we are entitled to express our opinions but we are not entitled to incite violence, to make defamatory statements or to infringe the European concept of privacy.  If we do the first we become criminals.  If the second we become liable to the person who we have defamed or whose privacy was invaded.  If it was decided that the deliberate spreading of false news through the media must be damped down, we would have to choose between these routes and, of the two, the creation of a new civil liability would almost certainly be the more effective.  It would be a brave prosecuting authority which charged a platform with spreading false news save in the most egregious circumstances.  If, however, anyone who received false news was entitled to sue the person who had provided it on a contingent fee basis, there would be plenty of lawyers who would ensure that breaking the rules carried an unacceptable level of risk.

Very well, then.  Let us make the first plank in our structure a right not to be exposed to false news, carrying damages from the operator of the platform equal to the greater of any loss incurred by the recipient (say, if they had made a financial decision on the basis of false news) or a set amount of, say, £1000 plus costs.  Similar rights might include not to be trolled, etcetera, etcetera.

Left there, of course, the position would be quite impossible for media platforms.  One piece of false news and down you would go under a plethora of claims which, though small, added up to a huge amount.  So the right to recover damages would have to be limited in two ways.  Firstly there would be a cap on the overall amount recovered, to be shared between claimants on a ‘first come first served’ basis.  Secondly, however, unless the platform were found to have been deliberately involved in the publication of fake news, it would cease to be liable if it disclosed to the claimants the names of those who had posted the information, in which case those people could be sued as if they were media platforms themselves.

The next step in the chain is the mechanism under which the platform can access the information about its users, and this would mean all users having to file names and details with the platform, similar perhaps to those details which are currently filed under money-laundering regulations.  It would be an offence for a platform to fail to collect such details and for anyone posting information on the platform to provide false information.   Nonetheless, provided that the operator of the platform could show that it had taken reasonable steps to ensure the information held was complete and correct, it would have a defence to liability.

By now all those who are specialists in social media will have their heads in their hands.  “None of it works”, they will say and they will produce plenty of good sensible reasons why it would not.  The purpose of this article, then, is not to put forward a solution but to open a debate and in particular to make the suggestion that any sanction for providing false news should be civil rather than criminal liability.  After all, since law firms became entitled to advertise, we have seen a large number of ambulance chasing actions, many of them exaggerated, unfair of harmful.  Perhaps this is a chance to channel the rapacious energy of the ambulance chasers in the legal profession to promote a public good.



image: Tyler Franta at Unsplash

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