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“It could not be foreseen that a time would come when a partisan press would seek to mislead the people…when whole columns of fake news would be published, that whole columns of sensational stuff would be printed and read.”
This expression of disbelief that the press could carry fake news was written in The Davenport Daily Republican in 1896. Or was it? Maybe I have made it up. How do you tell? Do you look at the blog and note that it is managed by the University of East Anglia and does that give the comment veracity? The university has experts who should not let a lie be spread in its name. But Mr Gove famously said, ‘people in this country have had enough of experts.’ Was his comment based on facts or is that too another piece of ‘fake news’?
This blog will take a brief foray into the not so recent phenomena of fake news, regulation, satire and censorship. For the sake of this blog I will use Allcott and Gentzkow’s [1] definition, ‘news articles that are intentionally and verifiably false, and could mislead readers'.
Fake news is still very much on-trend. It was named the 2017 ‘word of the year’ by Collins Dictionary who reported that since 2016 the term had increased in use by 365%. The phenomenon is proving so popular that last year The Science and Media Museum put on an exhibition celebrating, if that is the right word, fake news which has spanned the centuries. The exhibition illustrated that fake news is not new with a newspaper article from 1835, stating the astronomer Sir John Herschel had discovered ‘bat people’ on the moon. This was written to increase circulation. Today there is a similar use of fake news for commercial gain on social media and cries of ‘Fake news!’ by presidents and politicians used to silence opposing views and potentially undermine democracy.
As usual, regulation is ‘chasing’ technology. There are various statutory and self-regulatory requirements with which the UK’s broadcasters and print newspapers are expected to comply. Some, but not all, on-line news providers have signed up to press regulators IPSO and Impress. The BBC is the only broadcaster to have their online news content regulated by Ofcom. This should ensure, inter alia, the public is not misled by those who have editorial control. But now the methods of distributing information and misinformation have changed dramatically. Anyone with online access could gain a global audience that some broadcasters can only dream about. They can have a far-reaching voice without any social responsibility and the only editorial checks and controls are their own.
The regulatory landscape for online content is very fragmented. Both Twitter and Facebook have been defined as aggregators rather than publishers and claim little, if any, responsibility for the content that users upload, rather trusting these users to flag problematic content and have a third party make checks and suspend accounts. The amount of fake news that is uploaded and shared on Facebook alone is in the millions as shown by Silverman’s research on Facebook data. After the 2016 US election, surveys indicated that many people believed the claims that fake news sites promoted. [2] This raises the issue of a real threat to democracy if the electorate is making decisions based on lies.
Dame Patricia Hodgson, the Chair of the UK’s Office of Communications, has said in her personal view Facebook is a publisher and therefore should fall under a regulatory remit. However, its Chief Executive Sharon White is concerned that regulating the internet would create a ‘fuzzy boundary’ with censorship. Thus, even the regulators have not agreed upon what should be regulated, let alone how to do so.
Alongside Italy, France announced a new ‘fake news’ law to attempt to address the issue, Germany has a new law on social media whilst the Czech Republic and British government are both establishing special ‘units’ to combat disinformation. This ‘phenomenon of fake news and online disinformation’ has lead the European Union’s Commission to set up a ‘High-Level Expert Group’. The commission launched a public consultation for citizens [3] stating that the speed at which citizens can post and spread fake news online across the world is ‘a source of deep concern for its potential effects on the reputation of public institutions, the outcome of democratic deliberations or the citizens' opinion-forming on important public policies...’
In the public consultation, the Commission defined fake news by what it is not, rather than what it is. ‘Fake news’ includes ‘disinformation online when the content is not per se illegal and thus not covered by existing legislative and self-regulatory actions’. This, along with Allcott and Gentzkow’s [4] definition ‘news articles that are intentionally and verifiably false, and could mislead readers’ could also describe other content such as satire which may therefore be caught in the wake of censorship.
Satire is a vehicle used to undermine and challenge authority, covering serious political issues and raising public debate, it is a form of political speech employed to hold traditional media and government to account. However, ‘fake news’ and satirical content can all use similar language whilst their objectives are very different. The language and scenarios used can cause offence and breach regulations even when that very language is being used to illustrate the unacceptability of certain words and attitudes. This was highlighted recently, two members of Germany’s Right-Wing AfD are being investigated following an anti-Muslim tweet and Twitter then blocked a German satirical magazine’s account after their fictional AfD member parodied the tweet.
In the past, satire has been censored through more ‘traditional means’, by regulation of ‘taste and decency’ and in the courts (see Otto-Preminger-Institut v. Austria, (13470/87) [1994] ECHR 26 (20 September 1994) when a film was destroyed so not to offend the religious feelings of the Catholic Tyrolians). If media platforms, through a lack of formal regulation, become the censors is this the start of the ‘slippery slope’ where content is censored by a commercial platform, where the censors are more likely to be algorithms than a human with a red pen striking through content? I would argue that a human is better placed to make a judgement call on the impact and context of the content and the Otto-Preminger case is highly unusual. Filters and algorithms are more akin to a trawler net fishing through content, capturing more than necessary. Filters have been known to 'over-block' searches for information which may be helpful to vulnerable groups as there is no ability for a filter or an algorithm to make a contextual judgement.
Unlike fake news, satire also does not want to be taken as ‘real’. It is to entertain and raise debate rather than create ideological propaganda, should we be concerned by satire being restricted if it means we get fewer fake news stories? Of course, there are arguments for and against censorship of free speech. Fake news distorts the facts and misinforms the public, and there is a valid argument that censorship in the form of regulation might better uphold free speech rationales relating to truth and participation in democracy. Having rules to curb speech which is untrue should help to inform the public. The marketplace of ideas would surely work best when the speaker shares an honestly held opinion rather than one whose purpose is to mislead and manipulate.
On the other hand, regulated media can be guilty of restricting content either through editorial subjectivity or due to commercial pressures from advertisers and shareholders. Too much regulation may limit informed public debate and the public’s ability to truly participate in democracy because not enough ideas and opinions are being heard. That which challenges authority has an important role to play in society but what processes can be put in place to ensure that what seeks to undermine it is not? In the judging of whether it is satire or not, one may need to rely on the question of it being funny but funny certainly is not universal. Will we need Court-based Comedy Police who (or in the case of artificial intelligence, will write the algorithm) will draw the line and decide what is satire, what is an opinion piece and what is fake news?
Another solution could be improved media literacy. With no editorial gatekeeper on many of the media platforms, one could argue the individual should be taught to take responsibility and fact check content. The electorate traditionally received their political information through media filters, already editorially approved and complied with regulatory requirements. Perhaps the audience could be ‘educated’ to differentiate between news and ‘fake news’, to distinguish the often-blurred lines between opinion, satire, fake and factual content, and that there are different levels of regulation depending on the different ways content is ‘delivered’.
Is education in media literacy a better solution than regulation and should the public be expected to fact check all content? It is unlikely that this will always happen. Even The Sun has printed a satirical online magazine’s story about a toddler being refused entry at a vegan’s party because she was dressed in a cow onesie. If the press cannot always be bothered to factcheck their sources it is unlikely that the public always will. I for one am still training my binoculars on the moon in the hope of catching a glimpse of those elusive bat people.
Having spent over 20 years working as an editorial broadcast advisor for both public service and commercial broadcasters Jennifer Young completed an LLM at the UEA in Media Law, Policy and Practice in 2015. She is currently on the 1+3 SeNSS socio-legal pathway doctoral programme. Her research is on cross-platform media regulation: www.forhum.org
* Image 1 is by Wikimedia Commons and available here. It is licensed under the Creative Commons Attribution-Share Alike 2.0 Generic
[1] Allcott, H and Gentzkow, M, Social Media and Fake News in the 2016 Election, Journal of Economic Perspectives—Volume 31, Number 2—Spring 2017—Pages 211–236.
[2] Allcott, Hunt, and Matthew Gentzkow. 2017. “Social Media and Fake News in the 2016 Election.” Journal
of Economic Perspectives 31 (2): 1–28.
[3] Public consultation for citizens - "Fake news and online disinformation" - https://ec.europa.eu/eusurvey/runner/Public-consultation-for-citizens-on-Fake-news-and-online-disinformation.
[4] Allcott, H and Gentzkow, M, Social Media and Fake News in the 2016 Election, Journal of Economic Perspectives—Volume 31, Number 2—Spring 2017—Pages 211–236.