Free speech cannot be sacrificed to strike fake news
Free speech cannot be sacrificed to strike fake news
By SANDEEP GOPALAN, OPINION CONTRIBUTOR — 04/06/18 11:00
AM EDT
Is fake news a real problem or a phantom menace?
President Trump has railed against fake news, tweeting
about it at least 140 times, conferring international cult status upon the
term. Governments in countries as diverse as Ireland, the United Kingdom,
Germany, France, Malaysia, the Philippines and India have taken legal action
purportedly in an attempt to combat fake news. The impetus for these actions
escalated after revelations about Russian attempts to influence elections in
the United States and France by orchestrating the spread of fake news through
social media.
So, are politicians in these countries really motivated
by the urge to promote truth? Or are these laws aimed at censoring the media?
First, what is “fake news”? There is no commonly
understood definition. The Malaysian Anti-Fake News Act 2018 defines fake news
as “any news, information, data and reports, which is or are wholly or partly
false, whether in the form of features, visuals or audio recordings or in any
other form capable of suggesting words or ideas.” In other words, the definition
focuses purely on the accuracy of information without any concern for the
intention of the news producer.
It does not distinguish between facts and opinion,
either. The law makes it an offense to “knowingly create, offer, publish,
print, distribute, circulate or disseminate any fake news or publication
containing fake news...” In addition to financial penalties and imprisonment
for up to six years, the court can order an apology and removal of the
offending news.
The examples provided by the act’s drafters are attacking
a straw man — an individual who provides false information, knowing it to be
false. This will not make a dent against fake news. A news platform that merely
distributes information without knowledge that it is false will not be committing
an offense under the Malaysian law.
What is the purpose of jailing one individual who
knowingly provided false information — assuming this can be proved to the
satisfaction of the court — after the news item has been shared millions of
times over social media? People who spread such information are unlikely to
pause and verify the accuracy of news before sharing it. The law creates no
incentive for them to verify accuracy; they are exempt from liability as long
as they did not “know” that it was fake. In addition, the law has nothing to
say about bots that may cause the fake news to be spread widely.
The real harm from fake news stems from its rapid spread,
especially on social media platforms, so that it undermines trust in all news,
corrupts the marketplace of ideas and crowds out real information.
The Malaysian law’s utter inability to tackle the real
problem illustrates the fact that legal tools are ill-suited to tackling the
fake news problem. The law always has struggled with regulating speech content
— just look at legal efforts against hate speech, obscenity, virtual child
pornography, etc.
Why is fake news so prevalent? There is widespread
distrust of the media. A recent poll by Monmouth University found that 77
percent of Americans believe that the mainstream media reports fake news.
Thirty-one percent believe this happens regularly (53 percent among
Republicans) compared with 46 percent saying it is occasional. The respondents’
definition of fake news is even broader than the Malaysian law: only 25 percent
limit it to factual inaccuracy, whereas 65 percent apply it to editorial
decisions and which news stories the media cover. The poll found 83 percent of
people blame outside agents for planting fake news, and more than 71 percent
believe it is a serious problem.
President Trump will derive immense satisfaction from the
fact that over one-in-three Americans trust him more than CNN; 13 percent trust
them equally. In other words, more than half of Americans don’t trust CNN over
Trump. This is shocking for any media outlet in relation to any politician.
The Monmouth results are not exceptional. A poll by
Poynter in December 2017 showed that 69 percent of Americans believe the media
favor one side; 44 percent believe the media fabricate stories about Trump more than once in a
while. Almost one-third (31 percent) believe the media are the “enemy of the
people.” A Pew Research Center poll in 2017 showed a mere 11 percent of
Republicans trust the national news media, compared with 34 percent for Democrats.
Republicans’ trust in local media (24 percent) and friends/acquaintances (18
percent) is only marginally higher.
This overwhelming distrust of the once credible news
media has blurred the lines between real news and falsehoods. Coevally, people
suffer from affirmation bias — the urge to seek information that affirms their
prior beliefs.
Unfortunately, these problems cannot be tackled by
anti-fake news laws. Courts cannot become fact-checkers and governments cannot
be trusted to become arbiters of the truth through police powers. Any legal
action would also be futile — the horse would have bolted before a court could
issue a ruling, and the damage typically happens within hours, not months or
years. In addition, many pieces of fake news are probably harmless — in the
same way as rumor and innuendo, although social media has scaled up its
dissemination.
Ultimately, legal tools should be limited to problems
they can solve. Fake news is not one of these problems. The marketplace for
ideas will ensure that true news trumps fake news. Tech companies soon will
realize that if their platforms are perceived to be vehicles for the spread of
falsehoods, they will suffer the same fate as mainstream media and subscribers
will abandon them. This will incentivize them to devise tech solutions to
filter out fake news and enable true news to rise to the top.
America’s constitutional commitment to free speech is
founded on an ability to skeptically assess all received wisdom. This applies
to all news — fake or real. People who consume information without critical
thought cannot be rescued by law and free speech should not be sacrificed in an
attempt to combat fake news. Leave the laws alone.
Sandeep Gopalan is the pro vice chancellor for academic
innovation and a professor of law at Deakin University, Melbourne, Australia.
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