The criminality of fake news

Fake news is “active misinformation” that is packaged to look authentic. Over 17 years ago, I came across a website that purported to be an official US civil rights site and bore the image of Martin Luther King Jr, but it was a race hate site funded and maintained by white US supremacists.

That far back, journalists were already being taught how to distinguish between fake news sources and authentic ones.

By the time WikiLeaks came along in 2006, publishing secret information, news leaks, and classified media from anonymous sources, which showed just how much the wool was being pulled over all our eyes, we were all engaged in the incredible social media revolution that soon demolished whatever safeguards existed in helping to define what is real news. During the 2016 US presidential election there was a lot of fake news about Hilary Clinton being a child murderer, which may have got some traction among voters.

Before that, the news that then President Barack Obama was not really a US-born citizen was a successful bit of fake news too.

These are actually personally damaging accusations, quite apart from the fact that they could influence the outcome of the election; and probably did in Mrs Clinton’s case. I often wondered why she did not bring a civil lawsuit against such gross defamation of character.

I reasoned that probably the sheer cost and time it would demand were obstacles. Also, there is the fact that in this kind of case the person found guilty would have to pay damages.

But who were the perpetrators of these defamations? Hundreds if not thousands of people would have re-tweeted the news, each of them guilty. How easily could her lawyers find the person who uploaded the damning YouTube video that portrays Mrs Clinton as being personally involved in the rape and murder of scores of children that got 400,000 views in four days? For that to be ignored, it is clear that a civil suit was not feasible.

If fake news can harm the democratic right of a citizen to make an informed choice about an election candidate then it is against the constitution and it should be possible for a criminal lawsuit to be pursued. But criminal libel is not a federal offence in the USA, and only in some states, which probably means Mrs Clinton’s would have had to take state-by-state action, making affordable, legal action almost impossible, with little chance of success.

The almost total lack of redress brings into question the limits of freedom of speech in the brave new world of the Internet and social media. The rules have changed and there are no new ways of managing a lot of the mores of today’s media world.

President Trump’s most recent, unsubstantiated tweets about then President Obama tapping Trump’s palace during the election is a case in point. It is a criminal offence for a US President to order surveillance of a US citizen except in exceptional circumstances. Mr Obama has described President Trump’s claims as “false,” but any legal action seems unlikely.

Criminal defamation was always controversial as it involves state prosecution, is hard to win, and those convicted face imprisonment.

The UK abolished it as an offence some years ago.

In TT, however, it remains a crime and journalists have argued for its abolition, since it hinders invest i g ative work.

I wonder, though, if every country needs it, given developments in the US?