Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Justin Yang
Justin Yang is a sophomore at the University of Pennsylvania studying Politics, Philosophy, and Economics.
In a recent court case in Germany, a Syrian refugee attempted to seek an injunction against Facebook after fake news articles that were shared on the site used a selfie he took with German chancellor Angela Merkel to link him with terrorist attacks across Europe.  The court ruled in favor of Facebook, reasoning that because Facebook had not manipulated the content, they were therefore not legally responsible for the distribution. But this is surely just the first of many more legal fights that will take place across the world as the role of fake news grows in our society, and as we begin to ask: who should be responsible for the spread of this misinformation?
It is commonly accepted that fake news articles that were predominantly shared across social media platforms like Facebook fueled vast amounts of misinformation among the electorate during the 2016 U.S. election. An infamous example is the so-called Pizzagate conspiracy, which accused Democratic presidential candidate Hillary Clinton of being involved in a child sex ring based in the evidently non-existent basement of a pizza parlor.  Like many other fake news articles, this one made potentially libelous accusations about a public figure and added to the vast amounts of misinformation that could potentially have had influence on the voting population. A democratic society cannot function properly if voters are seriously misinformed, and libel is one of the few types of speech that the First Amendment does not protect. But since many fake news articles are written anonymously behind computer screens across the world, it appears to some people that the only way to solve this problem is by holding the online platforms that spread the misinformation legally accountable.
One of the most relevant legal precedents to consider is New York Times Co. v. Sullivan, a Supreme Court case which established the “actual malice” standard, under which public figures must prove that the publisher of allegedly defamatory content knew the content was false or had reckless disregard for its truth or falsehood.  Obviously people like Hillary Clinton are public figures, so if she were to sue Facebook over articles like Pizzagate, she would not only have to establish that Facebook was a publisher of the articles and had control over the content of these articles, but she would also need to show that Facebook had “actual malice.” Both of these lines of argument seem tenuous– Facebook is not involved in any way in the creation of the libelous content, after all.
Even if it was the pizza parlor suing instead of Mrs. Clinton, it still seems difficult to establish that Facebook is legally liable for the libelous content. Even though libel cases bought by private individuals like the pizza parlor are not subject to the stringent standard of actual malice, Facebook is ultimately not responsible for the creation of the content. It might, however, be argued that the republication and spreading of libelous content is equally as problematic, and by allowing such content to spread on its platform, even tailoring news feeds so that certain people are more likely to see this content than others, Facebook is playing an active role and should be held liable.
This line of argument has a more solid footing, if not for additional pieces of legislation and other court rulings that have specifically addressed libel over the internet. The Supreme Court ruled in Gertz v. Robert Welch, Inc. that in defamation cases bought by private individuals, a strict liability standard, or liability that does not require proof of culpability, is unconstitutional.  Instead, it must be proved that the defendant acted negligently in making libelous or defamatory statements. The Court of Appeals for the Ninth Circuit expanded that ruling in Obsidian Finance Group, LLC v. Cox, extending the standard to internet bloggers making statements of public concern.  From this, it seems clear that for Facebook to be held legally liable for the fake news articles against private individuals on its website, it must at the very least be shown that it has acted negligently in the republication of these statements. For a website that does not and cannot check through the truth in every single post, the standard does not seem to have been met.
In addition, after the New York Supreme Court ruled in Stratton Oakmont, Inc. v. Prodigy Services, Co. that online service providers can be held liable for the speech of their users, Congress passed Section 230 of the Communications Decency Act in 1996. Section 230(c)(1) of the Act provides immunity for internet service providers, establishing that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  Short of a major change in defamation law and jurisprudence, it seems clear that Facebook cannot possibly be held liable for its role in spreading fake news to its users.
It is important to note that misinformation is not always equal to libel and defamation, so even if Facebook is legally liable for the fake news articles posted on its website, it would only be limited to the articles that make false statements which harm someone else’s reputation; articles with inaccurate statistics, made-up sources, and other journalistic sins could still potentially be protected by the First Amendment. Making websites like Facebook liable for fake news would be ineffective in the fight for truth. Rather, education, open-mindedness, and debate seems to me to be the better and more permanent ways to fight against falsehood and misinformation in a democratic society.
 Eddy, Melissa. “Selfie With Merkel by Refugee Became a Legal Case, but Facebook Won in German Court.” New York Times, March 7, 2017. Accessed March 17, 2017. https://www.nytimes.com/2017/03/07/business/germany-facebook-refugee-selfie-merkel.html
 LaCapria, Kim. “Comet Ping Pong Pizzeria Home to Child Abuse Ring Led by Hillary Clinton.” Snopes.com, November 21, 2016. Accessed March 18, 2017. http://www.snopes.com/pizzagate-conspiracy/
 “New York Times Co. v. Sullivan.” Justia. Accessed March 18, 2017. https://supreme.justia.com/cases/federal/us/376/254/case.html
 “Gertz v. Robert Welch, Inc.” Justia. Accessed March 18, 2017. https://supreme.justia.com/cases/federal/us/418/323/case.html
 “Obsidian Finance Group LLC v. Cox.” Google Scholar. Accessed March 18, 2017. https://scholar.google.com/scholar_case?case=9579695812632629482
 “47 U.S. Code § 230 – Protection for private blocking and screening of offensive material.” Legal Information Institute. Accessed March 18, 2017. https://www.law.cornell.edu/uscode/text/47/230
Photo Credit:Flickr User AJC1
The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.
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