Acting to stop harm: the FCA and Appointed Representatives
The final of The Times/Kingsley Napley Student Advocacy Competition 2017 takes place on 25 September 2017. The title this year is:
'Do we need new laws to combat fake news?'
So far in this series we have explored the definition and origin of ‘fake news’, examined its revived fame and analysed the difficulties of distinguishing it from the truth. We have also looked at the motivations of publishers of fake news articles, the role digital technology has played, and how these stories can affect global politics, society and the economy.
Over the coming weeks we will draw this series to a close, seeking to conclude whether new laws are required to combat ‘fake news.’ In this blog, we will look at whether the existing UK legislation offers adequate protection against the rising threat of ‘fake news’.
Existing UK legislation provides some defence against the vicious media and online publications; legal action may be possible where posts are defamatory or invade privacy, or incite violence, hatred or terrorism. Additionally, regulators such as the Office of Communications (OFCOM) and the Independent Press Standards Organisation (IPSO) guard against the publication of harmful or offensive material by broadcast media and the press. However, there is currently no legislation specifically combating fake news stories, and the mere publication of a hoax is not enough for an individual to bring proceedings for defamation against a publisher under current media laws.
Defamation covers both libel and slander, which are the publication of material which adversely affects a person's reputation. Libel concerns permanent forms of publication, for example printed media, online or broadcasting, whereas slander concerns more transient forms such as spoken words or gestures.
There is no single definition of what constitutes a ‘defamatory statement’. However, under the Defamation Act 2013 (DA 2013), a statement is defamatory if it is proven to be false, and its publication ‘caused or is likely to cause serious harm’ to individuals’ or businesses’ reputation. If serious harm to reputation cannot be established, then that statement is not deemed to be defamatory. For businesses there is an additional hurdle - they must show that they have suffered, or are likely to suffer, serious financial loss.
This means that less meritorious claims for defamation, where no real damage has been caused, cannot be brought. So although the DA 2013 does offer protection against defamatory fake news stories, crucially, it affords no protection whatsoever against fabricated stories which are not defamatory, even if they are entirely untrue.
The Communications Act 2003 (CA 2003) consolidated UK broadcasting regulators and established the legislative framework for regulating telecommunications in the UK. Under the act, it is an offence to send a message that is grossly offensive or of an indecent, obscene or menacing character over a public electronic communications network. This covers messages sent on Facebook, Twitter and through practically any other communications medium. A person guilty of this offence can be liable to imprisonment for a term not exceeding six months, a fine, or to both.
The CA 2003 goes too far in terms of criminalising what could be classed an innocent but silly behaviour, such as belligerent posts on ‘Finstagram’ (aka fake Instagram, or ‘Finsta’). But equally it does not go far enough so as to offer any protection against the publication of false stories. Fake news will only fall under the remit of this act if it is ‘grossly offensive’; any misinformation which is not offensive but is simply untrue will slip through the net.
The Malicious Communications Act 1988 (MCA 1998) also prohibits the sending of an electronic communication which is indecent, grossly offensive, or which is false, or which the sender believes to be false if, the purpose or one of the purposes of the sender is to cause distress or anxiety to the recipient.
The MCA 1988 offers protection against the publication of false stories as long as one of the sender’s purposes was to cause distress or anxiety to the recipient. Although this may well be one of the intentions of some fake news writers, as we have seen in previous blogs, making profit through online advertising is a popular aim. So, creators of fake news stories who publish stories that are false but not grossly offensive with the sole purpose of maximising their revenue (and not to cause distress or anxiety to the recipient) would be left unchecked.
In the UK freedom of expression is protected under Article 10 of the European Convention on Human Rights (ECHR) as a qualified right. Its protection is wide in scope and includes communications that ‘offend, shock and disturb’.
Current defamation laws do not restrict our freedom of expression; until a story has been published we will often not even know that it exists. But the protection of freedom of expression must be curtailed by the overriding right to maintain or safeguard a stable, open and inclusive society.
There is an inherent risk of infringing freedom of speech and the freedom of the press if new laws are introduced, but this must be balanced against the ease with which stories can be published on a global level. One may argue that the legal framework within the UK is well equipped to strike the right balance, especially with the integration of domestic legislation and the ECHR. As technology advances, the law must adapt to ensure that it provides an adequate remedy for victims of defamatory allegations, fake news and hoaxes, whether or not these stories are offensive, have caused serious harm or financial loss.
The more immediate challenge lies within the availability of resources to effectively police publishers of misinformation, and to provide an effective deterrent against the fake news stories which have been increasingly circulated throughout the last couple of years.
To secure a free place at the final, please email us at firstname.lastname@example.org
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