Three points to make as a supplement to Monday’s post on fake news and free speech.
First, there’s a very good piece last week by Pagan Kennedy in the New York Times on the strategy of combating both fake news and what she calls “hate news” by alerting advertisers to just what they are supporting – something most of them are completely unaware of, due to the way advertising is programmed by algorithms with little human intervention.
I don’t think there’s a single silver bullet that’s going to solve the fake news problem, but using the market by targeting advertisers certainly seems a promising approach. (Thanks to Sol Salbe for drawing this article to my attention.)
Second was Donald Trump’s press conference yesterday (Wednesday in the US), in which, among a number of remarkable episodes, he accused Buzzfeed and CNN of peddling fake news. Nick O’Malley at Fairfax carefully explains why this is wrong; it’s a pity this needs saying, but he says it very well:
Fake news was a term that gained currency during the US election and it means something quite specific.
It refers to the creation from scratch of utterly false reports often trafficked under invented mastheads designed to spread virally on social media. Some fake news is created for political purposes – or indeed in the prosecution of foreign policy or even cross-border destabilisation – but much is created by apolitical actors simply to drive online traffic for profit.
… Fake news is not news you do not believe, nor is it news that does not suit your world view. It is not even news that proves to be incorrect.
It is fake.
No doubt there a many factors responsible for clouding the term’s meaning, but the primary one is that there has been a concerted campaign on the right to muddy the waters and make the term unusable. I think it’s important to push back against this.
Third, a commenter on Facebook queried my suggestion that fake news sites established for financial gain should be prosecuted for fraud “like any other scam merchant.” It was argued that this wouldn’t work because the money (in advertising dollars) did not come directly from the people to whom the deception was made.
I’ve spent some of the morning looking into this, and I think the worry is unfounded. At least going by the way the law has been codified in England and in Victoria, the identity of the person deceived seems not to matter, as long as the obtaining of property or financial advantage is as a result of the deception. The leading case is R. v. Kovacs, in the English Court of Appeal in 1973, when the defendant’s conviction for obtaining property via a bad cheque was upheld, even though the loss was suffered by the bank (which was not deceived) rather than the shopkeeper (who was). (See this set of online law notes, at page 26.)
It’s impossible to say just what a court in Australia would say about the question when it came to fake news, given how reluctant the authorities have been (sometimes for good reasons, sometimes not) to actually take on media companies. But I still think it would be worth trying.