04/13/2017

1996 Law Offers Legal Remedy To The Problem Of Fake News

James Freeman, The Wall Street Journal

The U.K.’s Daily Mail newspaper issued an apology to First Lady Melania Trump this morning for publishing allegations that she “provided services beyond simply modeling” in the 1990s and that she and President Trump may have given a misleading account of their first meeting. “We accept that these allegations about Mrs Trump are not true and we retract and withdraw them. We apologise to Mrs Trump for any distress that our publication caused her,” writes the Mail. The Journal reports that a “person familiar with the settlement said the newspaper agreed to pay the first lady $2.9 million in damages and legal costs.”

Speaking of consequences for publishing fake news, Rolling Stone has reached a settlement in the defamation case brought by former University of Virginia administrator Nicole Eramo over the magazine’s bogus 2014 rape story.

Rolling Stone’s false report was a sort of textbook case of shoddy journalism. As for Mrs. Trump, she benefited from her ability to bring suit not just in the U.S. but also in the U.K., where libel laws are much tougher on publishers. But without rewriting U.S. libel law or limiting any of our basic First Amendment rights here in the U.S., the federal judiciary can create a powerful incentive for publishers not to traffic in fake news.

All judges have to do is start interpreting a 1996 law as it was written, not as they would like it to be. There is no need for Congress to change any laws, and the politicians would likely inflict enormous damage to the U.S. economy and to U.S. consumers if they tried. But there is a legal remedy to fake news, and it will lead to better journalism than the reforms being marketed by Silicon Valley.

Ostensibly in an effort to combat fake news, companies like Facebook and Google have lately allied with various liberal media outfits purporting to be disinterested fact checkers. The predictable result will be a concerted effort to block conservative sites and a less aggressive effort against those on the left. And fake news will likely continue to thrive. Not that any of us wants to live in a society where fake news has been completely eradicated, given the regulation of speech that would be required to achieve such a goal. The founders were often infuriated by fake news but they also understood that a free society comes with a price.

But if we want free speech and also redress when publishers spread information they know to be false or without any care as to its veracity, the answer is to apply the incentives for good behavior that already exist in statutory law. The problem is current judicial interpretations of Section 230 of the Communications Decency Act of 1996.

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