'Fake News' was not a well-known term before the US elections, but it is now at the forefront of debates about online content and social media. Now that most of us source news stories online, the effect of fake coverage can be highly damaging.
A survey carried out by Ipsos Public Affairs found that 75% of the time, Fake News headlines are believed. One of the biggest Fake News stories of last year linked Hilary Clinton to a fabricated paedophile ring, while another said she supplied bombs to ISIS. Research by the Economist shows that even where readers are unsure about these stories, they rarely completely dismiss them. As the saying goes, 'there's no smoke without fire'. Presidential candidates are not the only ones affected; a wide range of public figures and companies have suffered. Pepsi saw its share price decline for three weeks after a Fake News story. The Pope was slated after he was falsely reported to have endorsed Donald Trump's candidature for the Presidency.
If you find yourself the subject of a Fake News story, it is important to know how to respond. It can be a difficult area to navigate, prompting the Culture, Media and Sport Committee to launch an inquiry into the issue, which closed for submissions on 3 March 2017. While the law in this area will no doubt develop, there are already some steps you can take.
Fake News vs Inaccurate Reporting
There is a difference between Fake News and inaccurate reporting. Fake News stories are usually completely made up, for a distinct purpose. It is not a result of a misunderstanding or misreporting. When mainstream media outlets report content inaccurately, they will usually correct it once they are aware of the issue (unless there is a dispute about the facts). Fake News stories, however, are intended to mislead.
The purpose is often to manipulate readers (as we saw with the US elections), or to flog a product. The story will start with an attention-grabbing headline about a well-known company or individual, and may end with a sales-pitch. It may be posted on a website that is designed to look like a well-known news broadcaster. For example, England rugby player James Haskell was recently featured in a Fake News story that said he had died at 31. According to his lawyers, the false article went on to promote a muscle-building supplement. The Fake News story was hosted by a website that mimicked ESPN (a well-known US sports broadcaster), thereby lulling readers into a false sense of security. As is often the case, the publisher of the false story was hard to trace. Its website is registered to a third party company in Panama.
Tackling Fake News
If a Fake News story is published about you, it is obviously important that you know about it as soon as possible. Content becomes viral incredibly quickly. Those in the public eye should consider having comprehensive online monitoring in place, so that damaging stories are picked up immediately.
Because the creators of Fake News stories are often unknown, hiding behind proxies or in far-off jurisdictions, you may struggle to get the content removed at source. However, relevant intermediary service providers (such as search engines and social media platforms) that host and promote this content should be challenged as soon as possible. In the case of an individual, publishing or hosting inaccurate content about them is likely to breach their rights under the Data Protection Act 1998. Once they are aware of the breach, ISPs are required to remove the content. You can also file a right to be forgotten request with Google and other search engines, so that search results for the inaccurate story are blocked. This can be done for all search results within the EU, following the Court of Justice's ruling in the 2014 Google Spain case, although this option does not apply to material accessible in other jurisdictions.
For companies or institutions who cannot rely on data protection law, taking action against a Fake News story will usually rely on a claim for malicious falsehood or defamation. Both of these actions have their limitations. To successfully sue for defamation, claimants must show they have suffered 'serious harm' to their reputation. For a profit-making body, this also requires showing that they have suffered 'serious financial loss'. The advantage of defamation is that third party publishers are also liable. Malicious falsehood can only be claimed against the original publisher (as it requires deliberate publication of a false statement), but has the advantage that it does not require the claimant to show that the statement caused damage to their reputation.
One option is to get an injunction against the original publisher of the false story (which will be ordered by the courts against 'Persons Unknown' if you cannot track them down). This injunction can then be served on online intermediaries (such as Google), who will be required to remove the content from search results. Action can also be taken to require third party publishers, such as social media platforms who host and profit from the content, to remove the false allegations. As the recent World-Check case shows, those who publish false and defamatory content about organisations online are increasingly held to account, even where they did not create the original story.
It is also important to consider how legal action taken fits in with your PR response. Communications should be tailored to the affected media platforms and to the scale of the problem. When considering a high-profile response, like litigation, the benefits will need to be balanced against the risk of making the story bigger. Factors such as the risk posed by the false allegations, the ease with which you can refute them and the scale of readership will help to determine your response.
It is sometimes said that Fake News should be ignored, but the research shows that these stories are frequently believed, even after high-profile campaigns to debunk them (see, for example, the Economist/Yougov poll after the US elections). The results of the Culture, Media and Sport Committee inquiry into Fake News may provide some guidance to lawmakers and those in the media industry on tackling this problem. Whether it is possible to introduce a law which allows the removal of false information may be difficult given that it has the potential to chill free speech. It may also prove impractical in terms of aggrieved parties being able to prove a negative to the satisfaction of a court. This will obviously depend on the nature of the false allegation.
In the meantime, however, there are some legal options that the subjects of Fake News stories can take. Legal steps can be taken alongside softer action such as an effective communications strategy, the promotion of truthful, positive content and search engine optimisation. What is clear is that the risk posed by a Fake News story should not be dismissed, because the story is unlikely to go unnoticed.
If you require further information on anything covered in this briefing please contact Alicia Mendonca(firstname.lastname@example.org) or your usual contact at the firm on 020 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, March 2017