Free speech cannot be sacrificed to strike fake news

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.

{mosads}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.