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The rise of fake news

Few legal tools to battle the tide of false stories spread online
By Hilary Young and Jula Hughes
March 24 2017 issue

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Disinformation is nothing new, but technology has made the ancient problem of “fake news” especially pernicious. It has become a hot topic since it emerged that people were spreading false news stories about candidates in the 2016 U.S. election.

In an Internet environment where people live in “filter bubbles,” contrary views are rarely discussed and there is a lack of fact-checking and editorial judgment, fake news is more likely to spread and be believed.

The question is: what can be done about it? Specifically, what can law contribute to the fight against spreading fake news? We define this as deliberately disseminating false factual statements presented as news. Although fake news may violate several current laws, it is not clear that existing legal tools are up to the challenge of combatting this problem that is so rooted in modern communications technology.

Telling lies, in and of itself, is not illegal. The Supreme Court has recognized that criminal and civil sanctions on lies create a chilling effect on speech, and further noted that even falsehoods sometimes contribute valuable ideas.

The Criminal Code includes a number of potentially relevant provisions including the offence of spreading false news in s. 181. Struck down by the Supreme Court in Zundel in 1992 as a violation of freedom of expression, the provision remains on the books, but can of course not be used. To the extent that fake news targets marginalized groups, hate speech laws may also be implicated. In Keegstra, 1990, the Supreme Court narrowly upheld the constitutionality of s. 319 including the reverse onus that requires the accused to prove the truth of the statement. Additionally, it is criminal per s. 372 to target individuals with false information or harass them through repeat communications.

The Canada Elections Act prohibits foreigners from interfering in Canadian elections. The same act also places restrictions on election advertising, but expressly excludes news from its scope.

Defamation law protects against false statements that tend to injure reputation. It has several benefits as a mechanism to fight lies: first, falsity is presumed. The defendant must prove the allegation’s truth or else it is deemed false. Second, there is no need to prove any intent to lie. Third, significant damages are available even in the absence of proof of harm, which should give people pause before spreading lies. Yet there are barriers that often make a defamation action impractical, as noted below.

Could Parliament craft a new law to criminalize fake news? To pass constitutional muster, any new law would have to respect the boundaries articulated in Zundel. Such a law would have to specify a pressing and substantial objective. Preventing interference with democratic elections would surely count, particularly given the robust approach taken by the Supreme Court in elections cases like Harper v. Canada (Attorney General) [2004] 1 S.C.R. 827; R. v. Bryan [2007] 1 S.C.R. 527; and most recently B.C. Freedom of Information and Privacy Association v. B.C. (Attorney General) 2017 SCC 6.

Any new legislation would also have to clearly target facts rather than opinions and identify the harm or injury it seeks to prevent. Again, the courts are likely to be more respectful of speech restrictions that promote free and fair elections than those aiming to improve public discourse more broadly. Even targeted legislation may be vulnerable to further constitutional challenges as was the case for Nova Scotia’s cyberbullying law.

Regardless, Canadian criminal and civil laws are unlikely to make much of a dent in the fake news problem. Given the international and frequently anonymous nature of modern communications, there will often be jurisdictional, choice of law and enforcement issues, assuming the responsible party can even be identified. For example, a small Macedonian town briefly became famous for being home to over 100 pro-Trump websites. (They did it to make ad revenue.) If they published unlawful content, it would have been impractical to identify defendants, have the court assert jurisdiction and enforce a judgment. A criminal prosecution would be even more difficult.

Some jurisdictions are getting creative in their approaches to fake news. Germany is considering a law in which Facebook would face large fines (500,000 euros per day) for each fake news story it fails to remove. To avoid a clamp-down, Facebook is testing a new option in the United States, France and Germany for users to report fake news and have the content vetted by existing independent organizations like Correctiv, a German body composed of investigative journalists. Pending investigation, the story will be marked as “disputed” and will appear lower in news feeds. The stories are also cut off from advertising.

For the most harmful and offensive examples of fake news, law may help achieve justice. But as with the issue of cyberbullying, the best approach to fake news is one that employs a range of tools: legal, educational and technological.

Hilary Young is an associate professor and Jula Hughes teaches criminal law and jurisprudence at the University of New Brunswick’s Faculty of Law.

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