With the proliferation of so-called "fake news", companies are starting to rely on third party organizations to perform a "fact checking" function in order to distinguish between legitimate news and fake news. The fake news epidemic gained traction in the recent US presidential election.  We have previously written about the fake news problem, as well as the UK Government's plan to tackle the issue.

While fake news began as false information disguised as legitimate news sources, the problem with fake news and the question as to what constitutes fake news is becoming more complicated and nuanced. For example:

  • If the majority of a news article is correct but there are some inaccuracies as well, is the article fake news?
  • If a news article presents accurate facts but then intentionally misleads the reader as to any conclusions, is the article fake news?
  • If a news article presents accurate information but also selectively edits out other accurate information, does this count as fake news?
  • If a news article is really a partisan opinion piece but purports to be objective, does this count as fake news?

New Fact Checking Tools

Companies like Facebook have recently announced new tools to help combat fake news.  For example, Facebook has just launched a tool that flags fake news in its News Feed, where it will advise users whether a story is "disputed".  The new tool also allows individual users to flag hoaxes by clicking on a post and tapping on "It's a fake news story."  After an article has been flagged, third party fact checkers such as Snopes and PolitiFact will review the article to determine whether it is fake.

Some immediate issues arise with this new tool. As one commentator points out: "This may accomplish some good, but the potential for abuse is immediately obvious". For example, users can choose to flag any article they dislike as fake news or can choose to subvert the process of fact checking itself.  Further, what one user may regard as fake news, can be interpreted differently by another user.

Legal Implications of Fact Checking

Fact checking tools can be helpful in combatting fake news, but they raise an important question that may have legal implications: who is fact checking the fact checkers?

This is an important question. If the buck stops at the fact checkers, does that mean they assume any liability in the course of assessing whether a story is fake news?  Does the company employing or partnering with the fact checker also assume any liability?  What rights, if any, does a user have if their article is deemed "fake news" by a fact checker?  Consider the following scenarios:

  • Defamation: Assume that a user has published a defamatory article. The article is disputed by another user on Facebook. A fact checker then checks the article and determines (incorrectly) that it is accurate. Is the fact checker now liable for defamation for having bestowed the label of "truth" to the article? Is Facebook liable for not removing the defamatory article?
  • Breach of privacy rights: Assume that a user has published an article that discloses sensitive information about an individual, in breach of privacy laws. The article is disputed and checked by a fact checker to be true. Is there any liability on the fact checker for not raising privacy issues when blessing the story?
  • Freedom of speech: Assume that a user has published an article that was improperly labeled by a fact checker as being fake news. Does the user have any legal recourse against the fact checker for having its free speech stifled?

Possible Considerations

For companies who wish to engage third party fact checkers, it is important to consider the possible legal implications in advance of entering into an agreement. The agreement may include provisions such as:

  • What happens in the event of legal claims arising?
  • Representations as to the independence of the fact checking organization
  • Procedures for determining when and how to classify a story as fake news

As social media continues to explode on the world stage, the issue of fake news is unlikely to go away any time soon. Therefore, it is prudent for companies who participate in social media to be aware of these issues and to be mindful of the legal implications of how they disseminate information on these platforms.

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