Is a solicitor under a duty to warn their client of risks falling outside their retainer?
The Times/Kingsley Napley Student Advocacy Competition 2017 launched on 18 May 2017. The title this year is:
“Do we need new laws to combat fake news?”
There is no single, accepted definition of ‘fake news’; different sources vary in their definitions.
According to the Culture, Media and Sport Committee (Committee) ‘fake news’ is “the growing phenomenon of widespread dissemination, through social media and the internet, and acceptance as fact of stories of uncertain provenance or accuracy”. This would appear to set a low threshold, as under this definition ‘fake news’ can be any story published online that might be inaccurate.
On 17 December 2016 the Guardian published an article referring to fake news as that which is “completely made up, manipulated to resemble credible journalism and attract maximum attention and, with it, advertising revenue”. This definition requires a higher threshold to be met and requires proving ‘intent’, i.e. that the purpose for disseminating this information is to manipulate the reader into believing that the story is true.
The lack of a single, accepted definition makes identifying ‘fake news’ and distinguishing it from what is simply ‘false news’, or even a true story, inherently difficult. But for the purposes of this blog, we’ll define ‘fake news’ as the publication of intentionally false statements of fact.
As with ‘fake news’, there is no single definition of ‘false news’. Using our definition of ‘fake news’, we could argue that ‘false news’ stories are inaccurate stories that have some truth to them, but are either exaggerated or circulated without the author realising they are inaccurate or untrue. This may happen for example because the author has failed to verify all of the facts before publishing the story.
So the main difference between ‘fake news’ and ‘false news’ appears to be intention and a degree of knowledge - when publishing ‘fake news’, the writer/publisher knows that the information is inaccurate and wishes to influence the reader’s opinion; with false news, this level of knowledge and intent is not required.
Despite the distinction between fake and false news, some websites use the term ‘fake news’ and ‘false news/stories’ interchangeably. This can muddy the waters and create what we believe is the wrong impression, that the two terms are in fact the same.
A number of critics claim that the term ‘fake news’ has been used by politicians and commentators to mean anything they disagree with, and that they are essentially using the phrase as a stick to beat the mainstream press with. On 6 February 2017 Donald Trump tweeted that "any negative polls are fake news, just like CNN, ABC, NBC…". This has caused a great deal of confusion about the basic facts of current issues and has potentially caused damage to public trust in the media.
But if we cannot determine which news is in fact ‘fake’ or even define what ‘fake news’ means, would it be reasonable or even possible for the government to legislate against it?
Our next blog on this topic we will seek to address these questions.
For more information about how to enter or attend the competition go to www.kingsleynapley.co.uk/advocacy
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