After the 2016 election, fake news has taken the national spot light as politicians and journalists alike debate over what preventative steps should be taken. A year later, these suggested policies are beginning to realize, but consensus is still out on a precise definition of fake news. In any case where speech is limited, a careful analysis is necessary to prevent unnecessary, and potentially dangerous, censorship. As the world moves forward in its fight against fake news and we, students at the University of Tennessee, beginning to make our impact on it, it is vital that these changes concurrently push society forward and not diminish the freedom of speech. An alternative and under explored avenue in fighting fake news is to fight fake news through the court of law by legally defining it as falsehoods published for economic gain.
Fake News Policy Put Into Practice
A commonly held belief is that fake news can be fought through increased awareness of the issue and a consummation of more diverse, higher quality media. One op-ed discusses how “fake news and [social media] echo chambers reflect the magnetic pull that viral content has on our society” and argues that “[c]ritcial thinking has become the front line of defense” (Gavin, 2). Indeed, fake news as it is recognized today often preys on reader’s own confirmation biases. Now, colleges around the country are taking action in this vein. The University of Washington and University of Michigan are offering courses on identifying and avoiding fake news (Wilson). Other universities across the country are updating their journalism programs with stronger emphasis on journalism ethics and technological literacy (Smith). This common sense style approach is appealing to many, but in practice, its effect on the immediate future is unlikely to impact today’s fight against fake news due to the limited scope of these ununited movements.
Another popular suggestion is the implementation of technology to analyze and filter content. Google is working on updating its search engine “to prevent it from directing people to bogus, defamatory claims” (Fisher, 4). The “machine-learning algorithms that would warn users about dangerous or untrustworthy content” proposed within this New York Times op-ed are now being turned into reality in the form of artificial intelligence (Dooling, 2). ByteDance Technology, operated by one of China’s largest news media platforms, has developed two AI algorithms, one that creates fake news and one that is learning to identify the fake from the true using the earlier’s content (Jing). However, the future of fake news is likely to include fake videos. Indeed, various AI’s are increasingly skilled in photo, video, and audio manipulation (Lewis). In the near future, fake news will be backed by footage indiscernible from legitimate video. While technology vital to identifying and studying fake news, it cannot eliminate it as the technology to create it continues to advance.
Fake Obama Created Using AI Video Tool
Overwhelmingly, is the call for Facebook, Google, and other media companies to utilize these algorithms alongside human editors to filter and block content on their sites. Whether these companies themselves are responsible for spread of fake news, and thus responsible for removing it or that the hiring of third parties to both organize the filtration and removal of content is acceptable continues to be debated (Mossberg). However, given that these companies are all for profit, ethical concern arise over endorsing their censorship powers.
More disturbingly, is the rise of legislation designed to criminalize fake news. On October 1st, 2017, Germany’s “Act to Improve the Enforcement of Rights on Social Networks” will begin to be enforced (Gesley). It mandates that social media platforms remove “obviously illegal” content within twenty four hours, and more ambiguously illegal content within seven days following an investigation at the threat of million dollar fines (Gelsey). Tucked within legislation regarding increased transparency in political advertisements, Ireland recently made the use of automated software to publish anything regarding politics matters, true or false, a criminal offense (“Online Advertising and Social Media (Transparency) Bill 2017” 5-6).
Eroding the Freedom of Speech
Simply said, entrusting the powers of censorship into the hands of companies is fundamentally opposed to the promotion of the freedom of speech. Facebook and Google, among other media companies, are for profit, and this end goal is incompatible with a unbiased and honest selection of third parties to filter and block media or enacting genuine corporate practice against fake news. The vagueness of fake news definition only amplifies
When these practices are combined with government censorship, the danger to civil liberties grows. Maryant Pérez, a member of the European Digital Rights, discusses how “[t]hese companies are, quite rationally, driven by the motivation to avoid liability, using the cheapest options available, and to exploit the political legitimation of their restrictive measures for profit. This can only lead to privatized, unpredictable online censorship” (Pérez). Legislation against fake news is a treacherous path. The Irish law demonstrates how quickly saying anything, whether it falsehoods, sincerely held beliefs, or factual information, can quickly become illegal if it is said through the wrong method.
Even in the United States, laws similar to these are being proposed. Earlier this year, California drafted legislation that would prohibit “a person from knowingly and willingly making public or circulating on the Internet, or causing to be made published or circulated in any writing posted on the Internet, a false or deceptive statement designed to influence the vote on an issue submitted to voters or a candidate for public office” (“The California Political Cyberfraud Abatement Act 2017”). While seemingly just, it would not only would it criminalize humor and satire; it would also criminalizes reporting of any kind on such content (Maass). Furthermore, if one pauses to consider the potential effects on political races, the idea that political races would divulge into suing and counter suing over “hyperbole, exaggeration, poetic license, or common error” attempting to prove the other candidate “knowingly and willingly” made a “false or deceptive” statements is not far fetched (Maass) (“The California Political Cyberfraud Abatement Act 2017”).
This portion of the bill would be removed most likely due to concerns that it was unconstitutional and would not hold up in court (Maass). In fact, the Supreme Court previously rejected a bill designed to protect veterans because it could not “endure governmental authority to compile a list of subjects about which false statements as punishable”(qtd. in Gibson and Reid 4).
An Alternate Solution
This is the very beauty of our democratic system. It checks and balances itself in order to preserve the rights and values we hold dear. The government has already provided a pathway to fight fake news without jeopardizing the freedom of speech because this method targets what is genuinely wrong about fake news, the deception of the American people for profit.
The United States Supreme Court (Raga)
That is why I am proposing that we advocate for fake news to be given a legal definition of falsehoods published for economic gain. Through this, fake news is targeted through the country’s already existing anti fraud laws. If someone sincerely believes something false, or simply wants to open discussion around it, they will not be punished for exercising their civil rights. However, if a individual or group seeks to spread lies in order to make money, they can be brought to justice.
This method has been employed as early as 2012, when the Federal Trade Commission brought lawsuits against fake news advertisers featuring diet pills (Gibson and Reid 12). In 2014, the FTC successfully sued for the shutting down of fake sites selling diet pills with fake claims (Gibson and Reid 3). By adopting a clear legal definition for fake news, it opens up other organizations for citizens to civil right groups to fight against fake news and for the freedom of speech. This proposed definition allows for both the argument that an article is published for financial gain or that is it genuine, protected speech.
While the threat to the freedom of speech by the economic sector poses a subtle issue that will only grow with time, the use of legislation in attempt to prohibit fake news enables states to erode the freedoms of speech. As tempting as it is to cave to our desire to immediately and strongly protect individuals from deception, especially in regards to political processes, it is important to be cognizant of the dangers of taking away the rights that enable Americans to have unrestricted access to information, including what is logical, rational, and true. It is in this value of the freedom of speech and democracy that we must reject these methods and explore the potential of fighting fake news under anti fraud laws.
Dooling, Annemarie. “Algorithms Could Help Social Media Users Spot Fake News.” The New York Times, 22 Nov. 2016, https://www.nytimes.com/roomfordebate/2016/11/22/how-to-stop-the-spread-of-fake-news/algorithms-could-help-social-media-users-spot-fake-news
“The California Political Cyberfraud Abatement Act 2017.” California Legislative Information, Oct. 10 2017, https://leginfo.legislature.ca.gov/faces/billVersionsCompareClient.xhtml?bill_id=201720180AB1104&cversion=20170AB110499IN
“Fake Obama Created Using AI Video Tool.” Youtube, Jul. 19 2017, https://www.youtube.com /watch?v=AmUC4m6w1wo
Fisher, Anthony. “Fake News is Bad. Attempts to Ban it are Worse” Vox, 5 Jul. 2017, https://www.vox.com/the-big-idea/2017/7/5/15906382/fake-news-free-speech-facebook-google
Gelsey, Jenny. “Germany: Social Media Platforms to Be Held Accountable for Hosted Content Under ‘Facebook Act.’” Library of Congress, Jul. 11 2017, http://www.loc.gov/law/foreign-news/article/germany-social-media-platforms-to-be-held-accountable-for-hosted-content-under-facebook-act/
Gibson, Sara and David Reid. “Fake News and the First Amendment: A Developing Standard.” Insights to a Changing World Journal, vol. 2014, no. 3, 2014, pp. 3-15.
Glavin, Nicholas. “Facebook, Twitter Users Must Be More Critical of Content.” The New York Times, Nov. 22 2016, https://www.nytimes.com/roomfordebate/2016/11/22/how-to-stop-the-spread-of-fake-news/facebook-twitter-users-must-be-more-critical-of-content
Jing, Meng. “Fighting Fake News the Chinese Way: A Peek Inside China’s Biggest News Aggregator.” South China Morning Post, Dec. 1 2017, http://www.scmp.com/tech/apps-gaming/article/2122516/fighting-fake-news-chinese-way-peek-inside-chinas-biggest-news
Lewis, Helen. “Fake News: A World of Pixel-Perfect Forgeries is Coming.” Financial Times, Dec 9 2017, https://www.ft.com/content/1490b9e6-dc09-11e7-a039-c64b1c 09b482
Maass, Dave. “California Bill To Ban “Fake News” Would Be Disastrous for Political Speech.” Electronic Frontier Foundation, Mar. 27 2017, https://www.eff.org/deeplinks/2017/03/california-bill-ban-fake-news-would-be-disastrous-political-speech
Mossberg, Walt. “Facebook Can and Should Wipe Out Fake News.” The Verge, Nov. 30 2016, https://www.theverge.com/2016/11/30/13787750/walt-mossberg-facebook-fake-news
“Online Advertising and Social Media (Transparency) Bill 2017.” Oireachtas, Nov. 6 2017, http://www.oireachtas.ie/documents/bills28/bills/2017/15017/b15017d.pdf
Pérez, Maryant. “Germany: Will 30 June be the Day Populism Killed Free Speech?” European Digital Rights, Jun. 29 2017, https://edri.org/germany-will-30-june-be-the-day- populism-killed-free-speech/
Smith, Casey. “How Universities are Tackling the Fake News Problem.” USA Today College, Jan. 23 2017, http://college.usatoday.com/2017/01/23/how-universities-are-working-to-educate-students-and-the-public-about-fake-news/
Wilson, Bláithín. “How Universities are Fighting Fake News.” University Times, Nov. 27 2017, http://www.universitytimes.ie/2017/11/how-universities-are-fighting-fake-news/