The concept of “fake news” came to the forefront of public consciousness during the 2016 US Presidential Election campaign and with the rise of Donald Trump. Its profile has risen exponentially to the extent that the term “fake news” was awarded Word of the Year 2017 by Collins English Dictionary and barely a day goes past without the phrase being used in news coverage.
A key question for the UK government is whether more should be done to tackle this very 21st century phenomenon due to the clear shift in how users are consuming media and news in general, moving to online platforms and social media. It is apparent that the government is sufficiently concerned with this issue to set up a Select Committee (Digital, Culture, Media and Sport) to explore the concept of “fake news” and the potential impact it is having on the public understanding of the world.
The UK already has specific legislation governing defamatory, offensive and malicious statements and communication. The Defamation Act 2013 provides an avenue to pursue a claim if it can be shown that a false statement has been made and that its publication would cause “serious harm”. However, it is clear that not all fake news stories would be covered by current legislation as fake news is found in many different forms including with the aim of advertising and may not fit in the narrow definitions covered by legislation.
There is currently a lack of regulatory governance over the internet as there is no equivalent body to, say, OFCOM which regulates broadcast media including television and it may be time for the regulators to move with the times and regulate online media platforms. Other regulators such as the Independent Press Standards Organisation require the industry to sign up to become members, so it is highly unlikely that the creators of “fake news” stories will voluntarily sign up to these industry standards including the obligations to clearly differentiate facts and opinion within their publications. However, if the government does decides to increase regulation, serious issues may arise as to how this would be balanced with the right to Freedom of Expression under Article 10 of the European Convention on Human Rights. Human rights advocates will undoubtedly question whether stricter rules including the removal of content may be a step too fair in censorship.
Article 10 is a qualified right so if it is in the interests of national security or public safety there can be limitations to it. However, there is a delicate balance in the state overusing this ability to restrict the freedom of citizens, which may inexplicitly create a “censorship culture”, stirring the proponents in the “freedom of expression” lobby.
We await the recommendations of the Committee but it is a clear that a fine line needs to be drawn between the right to Freedom of Expression under Article 10 and the creation of regulatory or statutory protection to ensure that there are effective deterrents in place to prevent the influx of inaccurate news stories that are invading our news feeds.
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